If police accuse you of committing domestic violence, they will serve you with a safety notice. A safety notice immediately restricts you from doing certain things such as prohibiting you from living at your home, from attending specific places such as your children's childcare or school, seeing and communicating with your children and/or spouse who may be the victims/witnesses of the alleged family violence incident.
Safety notices evolve into interim Family Violence Intervention Orders ('IVO') once the matter is heard by a Magistrate during the first administrative hearing of the case called a Mention Hearing. It is important to understand that IVO applications follow a shoot now, aim later approach. The rules of evidence and legal protections which exist in criminal proceedings to protect an accused person's rights do not apply in IVO applications. Magistrates typically grant applications made by police for interim IVOs on hearsay and untested sources of information.
In some instances, Magistrates impose interim IVOs in the absence of the Respondent, placing them "behind the eight ball" from the outset. Therefore, you must strategically approach how they respond to the application.
This article offers some general strategies on how to handle an IVO application brought by police.
Do Not Breach the Conditions of the Safety Notice or Interim Intervention Order
Being served with a safety notice or interim IVO is undeniably devastating. These instruments have disruptive consequences on Respondents' lives. It is of paramount importance to understand the conditions of the safety notice or interim IVO and comply with them. A criminal charge of contravening conditions will compound your predicament in court because prosecutors will become entrenched in their position that a final IVO is needed.
Therefore, you must know the parameters allowed and disallowed by the document you are served with. Get legal advice if you are unsure how to interpret the documents.
Do Not Rely on Others
Far too often, I represent Respondents who hold a forlorn hope that prosecutors will withdraw their application for an IVO or that the affected family member will instruct prosecutors to withdraw the application. While these scenarios are possible, you should not depend on this because if neither occurs, the application will progress to a Further Mention Hearing or Directions Hearing, and the interim IVO will remain in place.
You should speak with an appropriately experienced solicitor to be advised of your options and develop a strategy to minimise the length of time you spend subject to an IVO.
Undergo Counselling
It is beneficial for you to undergo relevant counselling. This will give you leverage in court to apply to vary the interim IVO if the application remains unresolved or negotiate with prosecutors for the conditions to be reduced.
Undergoing counselling will not be viewed as an admission of guilt for the alleged domestic violence incident. Rather, it addresses one of the core concerns for the court in these matters - risk.
Apply to Vary or Revoke the Interim IVO
If the application remains unresolved because you oppose a final Order being made, you may apply to vary or revoke the interim IVO. This is a two-stage process.
First, a Magistrate must give you permission to apply to revoke or vary the interim IVO if they are satisfied that it is in the interests of justice that the application be determined immediately rather than waiting for the substantive application to be determined.
If the IVO has already finalised and you are applying to vary or revoke the final IVO, you must first get permission from a Magistrate to make your application by satisfying them that there has been a change in circumstances since the IVO was made and the change justifies a variation or revocation.
Secondly, if you are granted permission, you may make your variation or revocation application.
The Magistrate hearing your application must consider the following -
your reasons for seeking a variation or revocation,
the safety of the protected person,
the protected person's views about your application,
whether or not the protected person is legally represented, and
the protected person's guardian's views if there is a guardian.
Your application will improve your prospects of success if you do not breach the conditions of the safety notice or interim IVO and demonstrate a change in circumstances by undergoing counselling.
Get in contact with me on 0431 915 148 or tyson@chamberslawyers.com.au if you have been served with an application for a Family Violence Intervention Order. I look forward to working with you.