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Defending an IVO Application: Your Guide to Navigating the Legal Process in Victoria

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This article Defending an IVO Application is written by Joseph Adamo, Associate Defence Lawyer, Emma Turnbull Lawyers, Specialist Criminal Lawyers.
Joseph regularly appears in family violence and personal safety intervention order applications for both Applicants and Respondents in addition to his advocacy on behalf of the firm’s criminal defence clients. Prior to becoming a defence lawyer, Joseph was employed by a leading family law firm regularly appearing in the Federal Circuit and Family Court of Australia, advising clients in both parenting and property matters. He applies this knowledge when assisting client’s with intervention order matters.

Introduction: Dealing with an intervention order application can be a stressful and an overwhelming experience. However, it’s essential to understand your rights and the legal process involved. This summary aims to provide you with a comprehensive guide to defending an intervention order application in Victoria, including references to relevant legislation and an overview of what to expect when in Court. Additionally, we will explore the consequences of breaching an intervention order.

Understanding Intervention Orders: In Victoria, intervention orders, also known as restraining orders, are designed to protect individuals who are experiencing or have experienced family violence, stalking, or harassment. These orders are put in place to restrict the behaviour of the person causing harm (the respondent) and provide safety and security to the affected person (the applicant).

Defending an Intervention Order Application:

  1. Seek Legal Advice: It is crucial to consult with an experienced lawyer who specialises in intervention order cases. They can guide you through the legal process, assess the evidence against you, and develop a strong defence strategy tailored to your situation.
  2. Gather Evidence: Collect any evidence that supports your defence. This may include witness statements, text messages, emails, photographs or any other relevant documentation. Your lawyer can advise you on the types of evidence that are most effective in your case.
  3. Respondent’s Statement: Prepare a comprehensive statement outlining your version of events and the reasons why you dispute the allegations made against you. The statement will clearly articulate any inconsistencies in the Applicant’s claims and present any evidence you have to counter their allegations.

Relevant Legislation in Victoria: The primary legislation governing intervention orders in Victoria is the Family Violence Protection Act 2008 (FVPA) and the Personal Safety Intervention Orders Act 2010 (PSIOA). Your lawyer can provide detailed information and advice specific to your case.

What Happens at Court:

Mention Hearing: The court will schedule an initial mention hearing to determine the nature of the application and allow you to respond to the allegations. Your lawyer can represent you at this stage and present your defence in a limited way to protect your position. Where an interim order is in place, your lawyer can argue for a variation of that order if the conditions have an immediate impact on your daily life, including your employment.

Directions Hearing: Where an application for an intervention order is contested, the Court will adjourn the mention to a directions hearing. At this hearing, the Court will make orders for the service of Further and Better Particulars including details of the evidence and witnesses that are being relied upon in the application.

Contested Hearing: If you dispute the allegations and the matter proceeds to a contested hearing, both parties will have the opportunity to present evidence and call witnesses. Your lawyer will advocate on your behalf, cross-examine the witnesses and present your defence. It is crucial to be prepared, composed, and respectful during the proceedings.

Court Decision: After considering all the evidence presented, the Court will make a decision regarding the intervention order. The Court may decide to dismiss the application, grant the order on a limited basis or issue an order with specific conditions. If the order is granted, it is essential to comply with all of the conditions.

Intervention Order Applications often proceed alongside Family Court proceedings following separation or relationship breakdowns. This often leads to a conflict in the various Court orders.

In certain situations, conflicts may arise between intervention orders and Family Court orders. Intervention orders primarily fall under the jurisdiction of state and territory laws, while Family Court orders operate under federal legislation.

Intervention orders and Family Court orders may contain provisions that appear to be contradictory or incompatible with one another. For example, an intervention order may impose restrictions on contact between parties, while a Family Court order may grant visitation rights for the respondent of the intervention order and the child/ren. These conflicts can create confusion and legal uncertainty.

Section 68R of the Family Law Act provides that, if there is a conflict between a Family Court order and an intervention order, the Family Court order prevails. However, the Court must take the intervention order into account when making decisions to ensure the safety and well-being of all parties, especially if family violence is involved. This means that if there is a Family Court order in place, it will put the intervention order on pause whilst the Family Court order conditions are taking place.

Consequences of Breaching an Intervention Order: An Intervention Order is a civil matter unless it is breached by the respondent. The Intervention Order does not appear on your record unless you are found guilty of breaching the order. Breach of an intervention order can have serious consequences by way of criminal charges and also extensions of and variation to the order against you. If you breach an intervention order in Victoria, you may face criminal charges and potential penalties, which can include fines and in repeated cases, imprisonment. Additionally, breaching an intervention order can have a negative impact on future legal proceedings and may result in further legal actions being taken against you.

It is important to understand that even unintentional or accidental breaches can still lead to charges. It is your responsibility to familiarize yourself with the conditions of the intervention order and strictly adhere to them. If you believe that the conditions are unreasonable or need clarification, consult with your lawyer and seek legal advice.

Negotiating a resolution: In limited circumstances, your lawyer may be able to negotiate a favourable outcome for you without the need to agitate issues before a decision maker. This can include the withdrawal of an application on the basis you provide an undertaking to the Court. An undertaking is a promise to the court to not commit family violence or any of the prohibited behaviours.

Conclusion: Defending an intervention order application can be a complex and challenging process. By seeking legal advice, gathering evidence, and understanding the relevant legislation, you can better prepare yourself for Court proceedings. Remember to cooperate with your lawyer, follow their guidance and advice and prepare for your hearings.

Note: This information serves as a general guide only and should not be considered legal advice. For accurate and individual information, please book a consult with one of our specialist lawyers.

About the Directors:

Emma Turnbull is a passionate advocate for justice, equality, and empowerment. With her deep commitment to making a positive impact, she has dedicated her life to fighting for the rights of individuals facing prosecution by the State and promoting social change.

“I firmly believe that each and every one of us has the power to create meaningful change. It starts by finding our voices, standing up for what is right, and ensuring that everyone, whether they have a five day or three month jury trial, receives a fair hearing. My goal is that win or lose, every client feels they have received a fair trial, with their voice heard and their best defence put forward.”

Adrian Lewin is a seasoned criminal lawyer renowned for his unwavering dedication to defending the rights of individuals facing legal challenges. With his extensive experience and expertise in criminal law, Adrian has successfully represented clients in a wide range of complex cases. Known for his strategic thinking and meticulous preparation, he tirelessly fights for justice, ensuring that every client receives the strongest possible defence.