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Exploring Family Violence Safety Notices
Part 3 of the Family Violence Protection Act 2008 (Vic) (the Act) sets out the various powers the police may use to protect an affected family member from the risk of continued family violence before a Court determines an application for a Family Violence Intervention Order.
One of the specified powers provided under Division 2 of the Part is to serve a Family Violence Safety Notice on a person suspected of committing family violence against an affected family member.
Family Violence Safety Notices will often precede a Family Violence Intervention Order, particularly where the police are involved. In this article, we discuss the legislative basis and operation of the family safety notice under the Act.
How Do the Police Decide Whether to Serve a Family Violence Safety Notice?
A police officer who is attending an incident involving family violence will make an assessment as to whether a Family Violence Safety notice ought to be served on a respondent. Under section 24 of the Act, that assessment is informed by the following:
a) the police officer has reasonable grounds for suspecting the respondent is an adult; and
b) the police officer has no reasonable grounds for suspecting the respondent has a cognitive impairment; and
c) the police officer believes on reasonable grounds for suspecting there is a Family Law Act order or child protection order in force that may be inconsistent with the proposed terms of the family violence safety notice, after making reasonable inquiries of the respondent, the affected family member and any other adults at the scene of the incident; and
d) the police officer believes on reasonable grounds there is no family violence intervention order in place between the affected family member and the respondent; and
da) the police officer has no reasonable grounds for suspecting there is a community correction order under the Sentencing Act 1991 (Vic) in force that may be inconsistent with the proposed terms of the family violence safety notice; and
e) the police officer believes on reasonable grounds that, until an application for a family violence intervention order can be decided by the court, a family violence safety notice is necessary -
(i) to ensure the safety of the affected family member; or
(ii) to preserve any property of the affected family member; or
(iii) to protect a child who has been subjected to family violence committed by the respondent.
If these preconditions are satisfied a police officer may apply for a family violence safety notice by telephone or fax to a police officer, who is of the rank of Sergeant or a higher rank,
What Occurs when a Respondent Has been Served with a Family Violence Safety Notice?
The Act requires the police to serve a family violence safety notice as soon as possible after a family violence incident. Pursuant to the powers police have under Part 3 of the Act, a respondent will be directed to accompany the police to a police station for the purposes of being served with a family violence safety notice (section 14 of the Act).
The police may use reasonable force if a respondent refuses to comply with a direction given under the Act.
Often service of a family violence safety notice will occur at a police station. Where this occurs, pursuant to a direction under section 14 of the Act, the police are required to explain to a respondent the conditions of the family violence safety notice that they are being served with (section 35 of the Act).
Can a Family Violence Safety Notice Exclude a Respondent From His/Her Home?
Yes. The conditions on a family safety intervention order may include the same conditions as would apply under a family violence intervention order. Accordingly, such conditions may prevent a person from attending the home of the affected family member, or contacting or approaching the family member. For a list of the conditions that may be ordered under a family violence safety order, or family violence intervention order click here.
Often, the conditions on a family violence safety notice (including an exclusion condition) will be replicated on a family violence intervention order, if the presiding Magistrate considers it appropriate (section 53 and section 82 of the Act).
What Happens if a Family Violence Safety Notice is Breached?
A person who has received a family violence safety notice and has had the notice explained to them commits an offence if he or she contravenes that notice (see section 37 of the Act). The maximum penalty under the Act for contravening a family safety notice is 2 years imprisonment or 240 penalty units or both.
How Long Does a Family Violence Safety Notice Last?
A family violence safety notice remains in force until a Magistrate determines whether or not to grant an application for a family violence intervention order. The police are required to file a family violence safety notice with the nearest Magistrates' Court.
The filing of this safety notice will be accompanied by an application for a family violence intervention order, and a court date is usually fixed for 7 days after the service of the family safety notice upon the respondent.
Are Your Intending to Respond to a Family Violence Intervention Order, and Require Legal Advice or Representation?
Don't hesitate to contact us to organise an urgent appointment to discuss your situation. We provide an initial appointment free of charge (phone, zoom, or face-to-face) where you have the opportunity of outlining your circumstances, and we can provide advice as to your options and next steps.
