FAMILY VIOLENCE OFFENCES
‘Family Violence Offences’ is a blanket term which covers a number of offences, namely homicide, assault, sexual offences, stalking and offences against the Family Violence Protection Act. The fact that an offence is alleged to have been committed in circumstances of family violence does not change the elements and evidence required to convict a person of that offence.
However, given the immense public interest in combating offences of family violence, offences which occur in domestic settings have particular significance in terms of the powers of police protection, the imposition of intervention orders, the test applied when a person accused of family violence applies for bail, the evidence that may be raised against the accused at trial, and to sentencing. We have noted in recent times that Police will always lay charges where there is an allegation of family violence, even if the allegation does not relate to individuals who live with each other and see each other regularly. For example, we recently represented two men, who were brothers in law and rarely saw each other. At a family function, an argument arose between them and a scuffle ensued. The wife of one of the men reported the matter to the Police. Both men were ultimately charged with assault offences after footage of the incident was produced from a family member’s phone, even though neither wanted to pursue charges of assault, they rarely saw each other and did not intend to see each other again. The explanation we received from the Police was that the practice within the Police force now is to always lay charges where there is evidence of family violence.
Family violence is defined under section 5(a) and (b) of the Family Violence Protection Act as:
Behaviour by a person towards a family member of that person if that behaviour—
- is physically or sexually abusive; or
- is emotionally or psychologically abusive; or
- is economically abusive; or
- is threatening; or
- is coercive; or
- in any other way controls or dominates the family member and causes that family member to feel fear for the safety or well-being of that family member or another person; or
- behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of behaviour constituting family violence.
The definitions of emotional or psychological abuse, and economic abuse are also defined in the Act. If you click on the individual hyperlink above, they will take you to the relevant definitions.
Below are some key areas where law addresses family violence particularly:
The Magistrates Courts across Victoria have now implemented fast tracking under the new Chief Magistrates’ Practice Note, effective at the various suburban, rural and metropolitan Courts from the beginning of 2017. Essentially, the practice note dictates that a person charged with family violence offences must be brought before the Court 7 days after they are charged and bailed by Police, or 4 weeks after they are charged and summonsed by Police. We have noticed a preference by Police to place individuals charged with family violence offences on bail, with the bail incorporating conditions identical to an intervention order. This way, the Police do not need to immediately prepare and serve a Family Violence Safety Notice, but can file an Application for an Intervention Order with the Court.
Family Violence Intervention Orders
If you are served with a Family Violence Safety Notice or a Family Violence Intervention Order (whether an Interim Order or a Final Order), the following information may apply to you.
Entry & Search without Warrant
If a police officer reasonably believes that a person has assaulted a family member or threatened to assault them, and that person is on the premises in contravention of an Intervention Order or Family Violence Safety Notice, the officer may enter the premises and search the same if they have the express or implied consent of the occupier to do so.
In circumstances where a Family Violence Safety Notice or a Family Violence Intervention Order has been issued and a Police officer is aware that the respondent to the Notice or Order has a firearm, ammunition or weapon (regardless of whether they have an authority and licence), the officer may direct the person to surrender them. Failure to comply with a direction to surrender a firearm is punishable by a financial penalty of up to 60 penalty units. For information on penalty units, visit our Infringements Page.
If a Police member intends to apply for:
- a family violence intervention order (IVO),
- an order varying an IVO,
- or a family violence safety notice, and
he or she believes on reasonable grounds that they need to hold the suspected perpetrator to ensure the safety of a family member or property of a family member, he or she may detain the suspect for up to 6 hours (or longer if an extension is granted by the court). Police are not allowed to question or interview a person in relation to suspected offences during this period. They may, however, be arrested and interviewed after the period of detention has ceased. The suspect must be told that the detention period has ceased and the legal requirements of arrest and caution must be followed. Please see our FAQ’s page for information regarding Police procedure for arrest, caution and interview.
A Family Violence Safety Notice is an enforceable document, which is issued by a Sergeant of Police or an officer of higher rank. A Notice is made in circumstances where a Police member has responded to a an incident which they believe to involve family violence and there is no current IVO in place. The Notice is issued upon application by the attending Police member to the Senior member, in order to give the Police or the affected family member an opportunity to apply for an intervention order from the court. In order for a Notice to be issued, the Police member must believe on reasonable grounds that the Notice is necessary in order to –
- ensure the safety of the affected family member; and/or
- preserve any property of the affected family member; and/or
- to protect a child who has been subjected to family violence committed by the recipient of the Notice.
The Notice will have effect until the issue of whether an IVO or Interim IVO is decided by a Court.
Family Violence Intervention Orders apply to parties who are related to one another, such as a spouse, domestic partner, parent, child or to people who have previously been in an intimate relationship with one another. The purposes of these orders under the Act is to –
- maximise safety for children and adults who experience family violence; and
- prevent and reduce family violence to the greatest extent possible; and
- promote the accountability of perpetrators of family violence for their actions.
These orders can be applied for by the person in need of protection (referred to as the applicant, complainant or affected family member) or by the Police. The person against whom the IVO is proposed to be made is referred to as the respondent. Usually, the respondent will become aware that IVO proceedings have been instigated against them when they are served with an Application for a Final Order and a Summons to attend court. They may also receive an Interim Intervention Order, which is made in circumstances where the Court forms the view that the protected person(s) require protection from the respondent whilst the proceedings are underway and, before a Final IVO is made.
The first court appearance in relation to these proceedings occur in the Magistrates’ Court and is referred to as a Mention. It gives both parties the opportunity to indicate whether the order will be made with the consent of the parties (ie the respondent agrees to the making of the Order, although usually without admitting the allegations made) or whether the Order is contested. If the Order is consented to by the respondent, or the respondent fails to appear in answer to the summons, the Order will be made by the Magistrate.
If the respondent appears in answer to the summons and indicates that he or she will contest the Application, the matter is usually listed for a further Mention, where the parties will advise the Court of the expected duration of the Contested Hearing, how many witnesses will be called, whether the parties will be legally represented and so forth. At a Contested Hearing, evidence is heard from the applicant, the respondent and any other witnesses that either party calls. Both parties may be legally represented, as may any child who may be affected by the making of the order if the court deems it necessary: Legal representation for a Child.
The court will then make a decision about whether to grant the Application and make a Final order or not. The Magistrate must decide whether on the balance of probabilities, family violence has occurred and an order is required to protect the applicant and any other persons listed under the order. The test is not beyond reasonable doubt, as it is in the criminal jurisdiction, but rather on the balance of probabilities. It can be simply explained as the Magistrate finding that, more likely than not, family violence occurred and the applicant is more likely than not going to require the protection of an IVO.
If an Order is made, it can be made with a variety of conditions, including:
- the respondent must not commit acts of family violence;
- the respondent must not approach the protected person or go within a certain distance of them, where they live, work or attend school;
- the respondent must not contact the protected person;
- the respondent will be excluded from the protected person’s residence (even if it was also their own residence); and
- the respondent be assessed for a Counselling Order.
Any breach of the conditions of the Family Violence Intervention Order is an offence and can be the subject of a Police charge, bringing the respondent before the Court as a criminal accused. See below.
If a person is charged with one of these offences:
- stalking and you have within the last 10 years been convicted/found guilty of an offence involving the use or threat of violence or the court is satisfied that you (on a separate occasion) used/threatened violence against the alleged victim of the stalking (regardless of whether you were charged, convicted or found guilty of the prior matter); or
- with a breach offence under the Family Violence Protection Act, where it is alleged that you used or threatened violence and you have been found guilty in the last 10 years of an offence involving the use or threat of violence or the court is satisfied that you (on a separate occasion) used/threatened violence against the alleged victim of the stalking (regardless of whether you were charged, convicted or found guilty of the prior matter) –
he or she will have to show cause to a Magistrate or Judge as to why they should be granted bail. They are not entitled to bail without showing such cause. Since the case of Re Application for Bail by Swain  VSC 55, judicial officers must interpret the term ‘violence’ when considering prior matters in accordance with its ordinary meaning and not the wider definition outlined in the Family Violence legislation. In addition, the fact that they have priors for family violence may cause concerns that, if released on bail, the accused would be an unacceptable risk. See our section on Bail for further information.
Since the introduction of the Victoria Police Family Violence protocol and the Fast Tracking practice note, a larger number of accused persons charged with family violence offences are placed on bail at the Police station following charge. The bail conditions are often designed to closely mirror Intervention Order conditions that have been or will be imposed.
However, caution must be exercised! We have had recent experiences where the conditions on bail and the conditions on an Intervention Order are consistent with each other and returnable in Court on different days. That means that whilst the Intervention Order, for example, may allow an accused person to collect their personal effects in the present of a Police member, the conditions of bail to do. So, whilst you would not be in breach of the Order, you would be in breach of your Bail which is a criminal offence. Also make sure you check the dates on your Bail and your Intervention Order summons. The Intervention Order court operates Police matters on certain days, but the ordinary summary criminal stream in the Magistrates’ Court operates every day. Accordingly, you may be called to answer your charges on a separate day to be called to answer your Intervention Order.
Offences under the Family Violence Protection Act
Under the Family Violence Protection Act, it is an offence to breach a condition of a Family Violence Safety Notice or an IVO, so long as the Notice or Order has been served upon the respondent and explained to them. Breaches of an IVO do not have to be constituted by violence or other criminal offending although, if they are, the accused will likely be charged with other criminal offences as well as the breach. A breach can also be prosecuted if the respondent, for example, contacts the protected person, approaches them or publishes information or material about them on social media when there are a conditions in the IVO prohibiting them from doing so. Contravention of a Notice or Order is punishable by up to 2 years imprisonment or a significant fine.
Relationship Evidence at Trial
Where an accused is charged with serious offences arising from family violence, against a background of family violence, either the Prosecution or Defence may apply to the court at trial to introduce evidence before a jury of the nature of the relationship between the accused and the alleged victim. This is particularly relevant where the accused or alleged victim is alleged to have committed violent crimes against the other person and there is evidence that their relationship was marked by controlling behaviour, abuse and/or violence in the past. It may be crucial in circumstances where the accused is alleged to have killed an abusive partner in self defence or defence of another. There is a comprehensive description of what Relationship Evidence is on the Judicial College page in relation to this evidence.
Relationship evidence must have such relevance and probative value to the proceedings, that it outweighs the risk that it may be misused by the jury or lead them to make the wrong assumptions about the accused. So for example, a jury cannot use this evidence to reason that “well, he did it before, so he’s done it again”, unless the Prosecution has the leave of the Court to lead the evidence in this way.
This area of law is immensely complex and too detailed to be described adequately on this page. However, its introduction can be very significant in a trial. If you are facing charges against a backdrop of family violence, either as the perpetrator or the victim, you must obtain legal advice from an experienced criminal and evidence lawyer before proceeding further with your matter. Visit our contact us page for our details.
Currently there are no specific sentencing provisions which relate exclusively to family violence offences. However, there are particular features of family violence offences, which have relevance to the way in which they are sentenced.
Depending on the nature of the offending and any prior convictions for similar offending, a sentencing Court may sentence an accused as a serious offender. This requires the court to consider the protection of the community as the paramount consideration, which allows the court to impose a sentence which is longer than the sentence that would normally be considered appropriate for that offence. It also requires a court to make every term of imprisonment imposed upon the offender for a relevant offence cumulative upon any other uncompleted sentence or sentence of imprisonment imposed on the offender. This means that they do not serve all of their sentences at the same time (concurrently), but rather serve one on top of another.
In circumstances where the accused is not sentenced as a serious offender, the court may take into account, as an aggravating feature of the offending, the fact that the offence was committed in circumstances of family violence, which will increase the sentence. The aggravating features include not only the violence itself, but the breach of trust by the perpetrator and the fact that the attack is usually perpetrated on a weaker more defenseless person.
General deterrence of others within the community is also a paramount consideration when courts are sentencing family violence offences. They will, in effect, make an example out of the offender. They will also seek to specifically deter the offender him or herself from repeating the same behaviour and re-offending. Please refer to thebench notes on family violence for an insight into how the Courts view this kind of offending as well as section 5 of the Sentencing Act in relation to the purposes of sentencing.
Given the research that suggests that family violence is far more likely to occur when there are pre-existing alcohol and drug abuse issues, provisions under the Sentencing Act 1991 relating to drug treatment orders, community corrections orders and Court Assessment Orders may be relevant.
Currently, family violence is the focus of the Royal Commission into Family Violence in Victoria, the Queensland Domestic and Family Violence Taskforce, reports and recommendations by the Australian and Victorian Law Reform Commissions and by community groups. We expect that the law will change in due course and specific provisions (and potentially offences) will be introduced in relation to family violence.
If you are charged with an offence involving allegations of either historical or immediate acts of family violence, or have been served with a Family Violence Intervention Order, please contact one of our experienced criminal lawyers for advice.