The Family Violence Act 2004 was enacted to highlight the criminal nature of family violence, to improve the safety of victims of family violence and to put into place an integrated government response to the problem of family violence in our community. Under the Act, the safety, mental wellbeing and interests of people affected by family violence are the most important considerations.
What is family violence?
Family violence is any of the following types of conduct committed by a person, directly or indirectly against that person's spouse or partner:
- assault (including sexual assault);
- verbal abuse;
- stalking; or
- an attempt to do any of those things.
It also includes:
- economic abuse;
- emotional abuse;
- intimidation; and
- breaching any existing orders relating to Family Violence.
What will an order do?
Family Violence Orders (FVO) and Police Family Violence Orders (PFVO) in their basic form prohibit an alleged offender from threatening, abusing or assaulting a victim of family violence. More restrictive orders prevent an alleged offender from approaching or contacting a victim. The Applicant can be the Police or the person to be protected. The Respondent is the person alleged to have committed family violence, sometimes referred to as the person restrained.
Are there other conditions?
Both Family Violence Orders and Police Family Violence Orders will contain conditions to prevent further family violence against the Applicant or any other person named in the order. Those conditions might include all or some of the following:
- not to stalk the protected person;
- not to directly or indirectly threaten, harass, abuse or assault the protected person;
- not to approach the protected person directly or indirectly including by telephone, email, text, Facebook or other means;
- not to enter or remain on premises at which the protected person may be living or staying;
- not to go within a certain distance of where the protected person is living or staying, or their place of work;
- not to damage any personal property or other property of the protected person;
- to immediately surrender any firearms, ammunition or any other weapons;
- to immediately surrender any firearms licence or not to apply for any licence or permit under the Firearms Act 1996.
Are there any exceptions?
Where appropriate, there can be exceptions. Common ones allow:
- the Respondent to attend the premises in the company of a Police Officer to collect personal belongings;
- the parties to attend meetings by consent in the presence of a third party to discuss contact arrangements concerning children of the relationship;
- the parties to approach each other for the purpose of contact with any children of the relationship, as agreed or as ordered by the Family Court.
What does "indirectly" mean?
"Indirectly' includes the person restrained asking another person to contact, threaten or harass the protected person. It may even include the person restrained from contacting, threatening or harassing a member of the protected person's family.
How long does a Police Family Violence Order or a Family Violence Order last?
A Police Family Violence Order will generally be in place for a period of 12 months.
A Family Violence Order can be made as an Interim Order (until the finalisation of proceedings in Court) or as a Final Order. A Final Order is usually put in place for a period of 12 months, but may be made for as long as the Court thinks because of the evidence that the order is necessary to ensure safety.
Police Family Violence Orders
Tasmania Police are able to issue Police Family Violence Orders against a person if satisfied that person has committed, or is likely to commit a family violence offence. A Police Family Violence Order generally operates for 12 months from the date the order is served on the Respondent. The conditions of the Order will be clearly set out.
A Police Family Violence Order operates subject to any Family Court Order.
Applying for a Family Violence Order
Sometimes it will be necessary to apply directly to the Court for a Family Violence Order. Application forms can be obtained from the Magistrates Court of Tasmania. As a victim of family violence, you may also receive some assistance from the Safe at Home Solicitor at Legal Aid or the Court Support and Liaison Service.
When considering an application for making a Family Violence Order, the Court must consider:
- the safety and interests of the Applicant and any affected child to be of paramount importance;
- whether contact between both parties and any child who is a member of the family is relevant to the making of the Family Violence Order; and
- whether there are any relevant Family Court orders in place.
Vary or Revoke an Order
Sometimes it may be necessary to make application to vary, extend or revoke a Family Violence Order or Police Family Violence Order.
If you disagree with the making of a Police Family Violence Order, the person to be restrained or the person to be protected may apply to the Court to vary or revoke the Police Family Violence Order. If the original Police Family Violence Order was put in place by the Police, then they can agree or oppose the proposed changes to the Order.
A Police Family Violence Order will only be varied by Police if both parties consent and the variation would not expose the protected person or an affected child to an unacceptable risk of further family violence.
A Court that varies a Police Family Violence Order will make a Family Violence Order in its place.
An Order can be extended in circumstances where the Court is persuaded that an Order is still necessary to protect the victim or any affected child.
If you disagree with the orders contained in a Family Violence Order, the person to be protected or the person to be restrained may apply to the Court to vary, extend or revoke the Family Violence Order. If the original Family Violence Order was put in place by the Police, then they can agree or oppose the proposed changes to the Order.
In considering an application to vary a Family Violence Order, the Court must be satisfied that there has been substantial change in the relevant circumstances since the Order or last variation was made.
Only in very rare circumstances will a Court be satisfied that circumstances have changed sufficiently to revoke an Order entirely. The conditions may be varied to allow the parties to reconcile but will rarely be removed all together.
National Domestic Violence Scheme
New laws have been introduced across Australia to improve the protection of domestic violence victims. In the past, domestic violence orders (DVOs) only applied in the State or Territory where they were made or registered. This was a problem, especially if people moved. Email, the internet and social media also made it easier for offenders to stalk, abuse, or threaten people even if away in another State.
On the 25th November, 2017, the National Domestic Violence Order Scheme began. All DVOs made from that date are now automatically recognised and enforceable throughout Australia.
DVO made after 25th November 2017
If you have a DVO that was issued after 25th November 2017, it automatically applies all over Australia. You do not have to apply to register your DVO in another State or Territory of Australia for it to be enforceable.
DVO made before 25th November 2017
If your order was issued before 25th November 2017, you can have that order declared as nationally recognised. If it is an order from Victoria that hasn't expired, it is automatically a nationally-recognised order. If it is from somewhere else, or if you or the other person do not intend to ravel to or live in another State or Territory of Australia, you may choose not to declare your order. You will still be protected in the State or Territory where the DVO was made.
Go to the Magistrates Court of Tasmania for more information on the National Domestic Violence Scheme and the relevant forms.
Family violence offences
A family violence offence includes:
- aggravated assault,
- indecent assault,
- stalking, and
- some sexual offences.
Contravening or breaching a Family Violence Order or Police Family Violence Order is also a family violence offence. A person convicted of a family violence offence will face severe penalties.
The court will favourably take into account any rehabilitation program completed by a person convicted of a family violence offence. But in circumstances where the offender knew or was reckless about a child being exposed to family violence or in situations where the victim was pregnant, the offender will face a more severe penalty.
A person may be arrested and taken into custody where a Police Officer reasonably suspects that person has committed a family violence offence. A Police Officer may also enter a property and conduct a search if he or she reasonably suspects family violence has occurred.
A person taken into custody on suspicion of committing a family violence offence must be taken to Court as soon as is reasonably practical.
A person taken into custody may be detained for a period reasonably required to enable the Police to:
- determine the charge(s) which should be laid in relation to the family violence;
- carry out a risk screening assessment to determine the likelihood of family violence being repeated or becoming more severe;
- complete a safety audit to identify the measures available to enhance the safety of an affected person or affected child;
- implement the measures identified by a safety audit, where it is practical to do so;
- make and serve a Police Family Violence Order or an application for a Family Violence Order.
A person charged with a family violence offence will not be granted bail unless the Court or Police Officer is satisfied that the release of the person on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person or affected child.
If a person is charged with breaching a Police Family Violence Order or a Family Violence Order, they will be remanded in custody until they appear before a Magistrate to apply for bail.
Support services for victims of family violence
Legal Aid Commission of Tasmania - Safe at Home Solicitor contact 1300 366 611 to arrange an appointment.
RAIN - Relationship Abuse of an Intimate Nature (North West Tasmania)
More support services can be found by searching our referral database.
Support Services for offenders of family violence
The Defendant Health Liaison Service can assist people who have been charged with a family violence offence or who have been issued with a Police Family Violence Order or a Family Violence Order:
- to understand what the Police Family Violence Order or Family Violence Order means;
- to prevent future breaches of the Order;
- to obtain referrals to appropriate services such as housing, relationship counselling, alcohol/drug counselling etc;
- with advice about how to change a Police Family Violence Order in a way more likely to work.