Varying a Family Violence Intervention Order in the Magistrates’ Court

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The article Varying a Family Violence Intervention Order in the Magistrates’ Court is written by Kate Da Costa, Partner, Doogue + George Defence Lawyers.

Kate is one of our Partners and is part of our Sunshine team. She regularly represents clients at the Sunshine Magistrates’ Court for various criminal legal issues.

Kate has been working exclusively in the field of criminal law. She has experience in all Victorian criminal law jurisdictions including in the High Court of Australia.

Family ViolenceBoth a Protected Person and a Respondent can seek a variation of the conditions of an existing Family Violence Intervention Order. The need to vary a Family Violence Intervention Order might be because the conditions have proved very difficult to live with, or if there has been a significant change in personal circumstances.

My boyfriend and I had a really big argument and he got physical. It had never happened like that before. I called Police and they took out an IVO against him. I’d like to be able to talk to him about what happened, but he’s not allowed to speak to me at all.

The process, however, is more difficult for a Respondent.

Looking back, I guess my wife and I have been having trouble for years. All of a sudden she took an IVO out against me. It was a real shock. I’m not allowed to go home or even within 200 meters of the house. My parents live within that area. They are my main support, but I can’t go there either.

To make an Application to change or vary a Family Violence Intervention Order, the appropriate form must be completed and filed with the Court. The other party will be notified about the Application and a Court date set.

When deciding about whether to grant an Application to change or vary an Intervention Order, the Magistrate will consider several things including how the change might affect the safety of the Protected Person, and the views of Police if Police made the original Application for an Intervention Order.

Unlike a Protected Person, a Respondent must also first seek permission or ‘ask for leave’ from the Court before making an Application to change an Order. The Court will only allow a Respondent to make an Application to vary an Order if there has been a change in circumstances since the Order was made and the change may justify a variation of the Order. This of course results in very limited circumstances where a Respondent can seek a variation once a Final Order has been made. For example, leave has been refused to vary an Intervention Order in the following circumstances:

  • A Respondent changed employment and the new workplace fell within the distance prohibition.
  • A Respondent undertook courses in the Family Law jurisdiction as a precursor to having child-contact Orders made and sought to vary the Intervention Order to allow texting communication with the Protected Person regarding children’s issues.
For these reasons, it is vital for a Respondent have legal assistance to ensure that the terms of any Final Order are properly negotiated prior to any consent to an Order, or that the matter is properly defended through to Contested Hearing.
Date Published: 18 December 2018

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