Table of Contents
Victoria has serious legal and personal consequences of family violence claims. The accused is referred to as the respondent under the Family Violence Protection Act 2008 (Vic). Regardless of the type of case, whether it is an application for a Family Violence Intervention Order (FVIO) or a Police Safety Notice, the respondent has a variety of legal safeguards to which they can claim.
It is important to be aware of your rights at the beginning. A family violence lawyer can assist you in several ways by helping you realise how the entire process works, preparing you to go to court, and making informed decisions on how to proceed. The following is a summary of the major rights under Victorian law.
Right to Legal Representation
All respondents are entitled to independent legal advice at any point in the process, and it is highly advisable to do so before the initial hearing. There is a possibility that a duty lawyer will be present at the Magistrates’ Court on the day of your hearing and can help you at no cost. You will need to have no private lawyer.
Victorian law contains cross-examination safeguards as well. An unrepresented respondent must not be allowed to cross-examine the person in the protection himself. Under such circumstances, the court can request Victoria Legal Aid to assign a lawyer to perform such a job.
Options for Responding to an FVIO Application
There are four main choices the respondent can make when an FVIO application is made:
- Consent without admissions: You agree to follow the conditions of the order without making any admissions of the charges. This is a quick way of solving the issue without a disputed hearing and does not leave a criminal record.
- Undertaking: You make an official written commitment to the court to adhere to some rules. The application is normally withdrawn in case it is accepted by the applicant or the police. It is, however, a rare occurrence when police consent to commit to undertakings when they have already initiated the application.
- Contesting the order: You challenge the accusations in a disputed hearing, during which you are allowed to provide evidence and summon witnesses. The applicant needs to demonstrate on the balance of probabilities that family violence has taken place and is likely to continue.
- No appearance: You would not appear in court. But even when you are absent, the magistrate may still pass a final order on the evidence produced.
The implications of each of the options are different. Before deciding on the direction to take, you must prepare for your court hearing and know the consequences of every direction.
Procedural and Substantive Rights
In addition to the first response, there are various procedural rights that respondents have in Victorian law. In case you feel that the magistrate has made an error, then you can appeal to the County Court of Victoria within 30 days of the decision.
In case you have changed considerably after making an order, you may seek to vary or revoke an order with the court. Before you can apply to the court in this regard, you have to seek the permission of the court first as a respondent. The fact that you are under an exclusion condition and have to move out of the family home does not take away your rights to own property and to have legal ownership. You still hold your interest in the property and your power to get back personal belongings through arrangements with the help of the police.
Criminal Consequences of a Breach
The difference between a civil FVIO and the criminal proceedings should be understood. An intervention order is a civil issue, and being ordered to be one does not leave you with a criminal record. Yet, a violation of any of the terms of the order or a Family Violence Safety Notice is a criminal offence. Violation may lead to arrest, prosecution, and possible jail time.
Conditions of an order should be adhered to at any time, despite the indication by the person being under protection that it is acceptable not to. The conditions of an order can only be varied or cancelled by a magistrate.
Impact on Firearms and Employment
A final FVIO results in automatic suspension or cancellation of firearm licences and permits during the order period and for 5 years. Although an FVIO is not recorded in a criminal record, it can have an impact on positions that demand security clearance.
Conclusion
Accusations of family violence have a well-organised legal procedure and have defined rights to the respondent. The Victorian law offers valuable protection in terms of legal representation and choice of response, as well as appeal rights and property protection. Early consultation with legal counsel is the most viable and efficient thing to do in ensuring that you have protected your rights.