INTRODUCTION
Family Violence is an issue that society is struggling to address. As lawyers we are often at the coalface of attempting to manage this issue. After Police and medical professionals, we are often the next profession that is approached to deal with this issue. Often our role as lawyer can blur into managing issues that need attention from a psychologist or psychiatrist. Often when we are approached by clients with Family Violence issues when there are other legal issues such as Family Law, Criminal charges or other associated proceedings such as Guardianship, Probate/Estate law, Debt recovery and more. The commencement of Intervention Order proceedings is often the first port of call in what can be many months if not years of legal proceedings between various parties.
There are many things that can be said from the perspective of either the applicant or respondent to Intervention Order (“IVO”) proceedings but what can’t be denied is that in the majority of cases the granting of an interim IVO keeps the peace until further work can be done to resolve what is invariably a complicated scenario.
What can we do as lawyers to facilitate this process?
1. Produce a typed summary
Often clients attend the initial IVO interview with court registry unrepresented. If they do this they should have at least brought with them a succinct typed summary of ALL the incidents they allege. Ideally this should be in reverse chronological order. All of the incidents may not fit in to the application form but sometimes they do. One of the reasons for including every incident that will be relied on is to avoid cross-examination or criticism at a later date for failure to raise an incident. The typed summary will likely become the Further & Better Particulars at a later date and should be treated as a first draft. If there is the time and money then producing a complete Summary at this stage, along with evidentiary attachments such as emails, text messages, photos of damage or injury would be of great benefit to every person involved.
Clients often don’t appreciate the broad definition of Family Violence in section 5 of the Act and this should be carefully explained to them to ensure things such as economic abuse are included in the summary if necessary. Non relevant and inflammatory allegations should be avoided. If done properly the Summary will also form part of the brief when briefing counsel and should largely avoid the need for a memo. Producing a typed summary encourages or forces the client to remember, clarify and describe the incidents and prepares them (and their lawyers) for all that may be needed later in proceedings. It seems so simple producing a typed summary but so often it has never been properly or fully done.
2. Be clear as to what orders are needed
Some clients may only need a limited order others will need a full order. Do the children need to be on the order? Whether or not there are already Family Court orders in place, a decision needs to be made whether to submit to the court that the respondent’s time with the children should continue or whether to ask the Magistrate to suspend the Family Court orders or simply preclude the respondent from any time or communication. Precluding a parent from spending time with their children via an IVO is a decision not to be taken lightly. Clients should be advised away from this course of action unless there are real (future) concerns for the children. It will normally be appropriate to include the Family Law exception in the interim IVO to allow time to continue or be implemented at an appropriate time. Careful instructions will be needed to confirm the exact arrangements for respondents spending time with the children and how changeovers and the like will be managed in the new post separation environment.
3. Parenting plans
Parenting plans may need to be drafted and negotiated. Sometimes the parties have already established a pattern of spending time. On other occasions separation is a very recent event and little thought has been given to the detail needed with spend time arrangements. For a mixture of reasons, it can often be very difficult to negotiate a parenting plan at an IVO court appearance. Section 92 of the Act empowers a Magistrate to make an order that spend time and communication arrangements must be in writing but I have never experienced a Magistrate entertaining any submissions regarding spend time arrangements unless they are done by consent between the parties. Sometimes you may be lucky and can negotiate some time for a respondent or at least put in to writing the arrangement that has already been in place for some time. However, tensions can run high at an IVO appearance, it is often the first court appearance for the parties and they can be more difficult as a result.
The preference would be for solicitors to quickly negotiate a parenting plan away from the stress of court. If these negotiations do not progress to a speedy and reasonable stage then the best thing a client can do is quickly commence FCC proceedings and seek an abridgement of time in their application. Seeking a section 11F report may also be necessary in that application to clarify the issues or break the deadlock. Time can be of the essence with these applications because if a parent sits on their hands at this crucial stage then an unsatisfactory status quo can develop.
A decision regarding spend time arrangements and whether this is suspended must be based on whether the children will truly be at risk to spend time with the respondent. Whilst there may have been a good deal of acrimony whilst the couple were living together under one roof, once separated, the chance of arguments or family violence often diminishes significantly particularly if an interim IVO is in place. Normally it is changeovers that can cause issues but if the format of changeovers is very precisely drafted with appropriate conditions then it is normally unlikely that issues will arise.
4. The IVO making of interim/final orders tests
It is always a good idea to remind yourself (and the client), when preparing an application or preparing for final hearing, of the legislative test that the Magistrate needs to address in the making of either an interim or final order. It is much easier to obtain an interim order than a final order.
Section 53: on balance of probabilities an interim order is necessary to ensure safety of AFM, property protected etc.
Section 74: On balance of probabilities family violence has been committed and is likely to continue or occur again.
Often the second limb of the test is harder to establish than the first limb.
Preparation for final hearing should really focus on the second limb of the test. Often a lot of energy is put in to establishing the first limb of the test and the second limb is forgotten.
Sometime Undertakings, whether mutual or unilateral, are sufficient. In some cases Undertakings can do more good than an order. As always a case by case assessment is needed. Ultimately it is hoped that the parents/parties will be cooperatively (albeit separately) parenting the children at some time down the track and Undertakings may foster this better in some cases than an IVO.
5. Think about evidence needed
Take a look at each incident in the summary and think about what evidence might be available in regard to each incident. Section 65 of the Act allows the normal rules of Evidence to be relaxed at the discretion of the Magistrate hearing the IVO final hearing. What this means is that things like Family Law affidavits, section 11F and Family Reports will likely be admitted if relevant whether or not the makers of the documents give evidence or not. Police notes or daybook entries of an incident, sworn Statements made to police will likely be admitted whether or not the makers of the documents give evidence or not. DHS notes and/or reports may also be admitted. If a party seeks to have a item of evidence excluded from the hearing then it may
be best to make this application early for example at Directions Hearing to avoid making this application before the Magistrate hearing the Final Hearing. That evidence may be prejudicial and so having the non-‐hearing Magistrate rule on this evidence would be prudent.
One point to keep in mind is that if criminal charges are laid this could cause a party or witness to seek to not give potentially self‐incriminating evidence during an IVO hearing. Traditionally the laying of criminal charges would cause the long delay of an IVO Final Hearing however this is no longer the case. After the introduction of fast tracking of Family Violence matters which has had varying degrees of effectiveness at various Magistrates’ Courts around Victoria, there is now a tension here between the fast tracking of Family Violence matters and the often cited fear of self‐incrimination. Under the relatively new fast tracking of Family Violence matters some Magistrates will still proceed to IVO Final Hearing regardless of the status of criminal charges and clients have to be carefully advised of the risks of giving evidence, the recording of their evidence and the potential for the recording to be used in other, Family Law and/or Criminal Law proceedings. Sometimes clients mistake their sense of self confidence and ability with public speaking with the potential or risk their evidence could undermine or destroy not only their IVO case but cause problems in other jurisdictions. If you have confidence in your client, your client appreciates the risk and is prepared to take the risk then giving evidence could be the best option.
If some of your client’s case relies on CCTV footage or other recordings taken by a smartphone for example, ensure the facilities to play these recordings has been fully arranged and the playing of the recording can be seen and heard by everyone in the courtroom and will have no glitches.
6. How do children have their say?
Obviously children are, except in exceptional circumstances described in section 67 of the Act, precluded from giving evidence in IVO proceedings.
However, this does not mean that the “voice” of a child is totally excluded from the process. There are other ways of children’s evidence being “heard”. Caution needs to be exercised with this type of evidence and whether it might put undue pressure on the child or undermine the child’s short and/or long term relationship with either or both of the parents.
There may be s11F or Family Court reports available where the child or children have expressed to the Family Consultant their version of an incident. There is a prohibition on these reports being made public (section 121) but there is no prohibition on their use in IVO proceedings if the proceedings involve the same parties. There may be contested submissions about the admissibility of the reports but as long as relevancy is adhered to and/or possibly certain sections are excised then it should be admissible. There are two cases relevant to this issue Sahadi & Savva and Anor [2016] FamCAFC 65 (29 April 2016) a Full Court of the Family Court decision which involved the Police successfully applying for use of court documents for criminal prosecution of the parents having originally successfully applied under rule 15.10(3)(c) of the FCC rules and obtained leave from the trial Judge. There is also a High Court decision Hearne v Street [2008] HCA 36 (6 August 2008) which deals with commercial litigation and the use of discovered documents for other purposes than which the were discovered. The issue is whether there is an “implied undertaking” on the part of the receivers of the documents to only use them for the purposes for which they were produced. In my view, the fact that section 121 of the Family Law Act only prohibits the publication or bringing in to the public domain of reports, allows for use in other proceedings concerning the same parties and same issues. Family reports can be critical of both parents and so their utility in IVO proceedings may on balance not be worthwhile. If there is any doubt to cross jurisdictional admissibility, an application can be brought at the next FCC appearance for leave from the presiding Judge under rule 15.10(3)(c).
In addition to Family Reports or s11F Reports there may be Police notes or viva voce Police evidence of conversations/interviews they have had with a child where certain disclosures have been made. Subpoenas may need to be issued to obtain this. Likewise the DHHS may have also produced notes and/or reports about the family and (historical) incidents and this may also be worthwhile subpoenaing. Remembering that subpoenaed documents can only be tendered in the jurisdiction in which they were subpoenaed.
Another option that is sometime overlooked is the possibility of a child making IVO an application in the Children’s Court. Normally parents, guardians or Police make applications on behalf of a child or children in the Magistrates’ Court. However, depending on the age of the child/ren a case may be better conducted in the Children’s Court. Children can give viva voce evidence in the Children’s Court. Further or as an alternative, Division 3A of the Act includes a Section 73A which provides for “Assessment Reports” in proceedings in the Children’s Court in family violence intervention order applications. These Assessment Reports can apparently be in respect of a respondent, AFM or protected person. I have done very few appearances in the Children’s Court and have never sought such a report but some matters we get require thinking outside the square.
7. Sole occupancy of former matrimonial home
Apart from the already mentioned effect of an IVO which can be the temporary reduction or cessation of a respondent spending time with the children, the other aspect that can really effect clients is their exclusion from premises such as the former matrimonial home. The imposition of an interim IVO can often be part of the radical change in circumstances that separation brings and quite regularly an IVO causes the respondent to never live or spend time at the former matrimonial home ever again. It can be a very shocking and upsetting experience for clients. Often we are dealing with clients during one of the most stressful periods in their lives.
We have all represented clients on both sides of the fence. Sometimes we are applying to exclude, sometimes it’s our clients that are being excluded.
The timing of applications can be very significant. Once a respondent is excluded from the former matrimonial home it is very rare and would take many months to reverse the situation. One avenue that may reverse who has sole occupation of the former matrimonial is an application in the Federal Circuit Court (“the FCC”) for orders that include sole occupation. There can be many hurdles to obtaining a sole occupation order including commonly the financial realities of the applying party being able to achieve financial settlement without selling the house whilst also possibly paying spousal maintenance and servicing the (increased) mortgage.
Conclusion
It is important to receive timely advice regarding how to approach Intervention Orders because they can have a very lasting affect on your client’s life.
If you have a matter that involves an Intervention Order application, or any other matter pertaining to Family Violence allegations, you are welcome to contact Marcus to discuss. Marcus will work with you to resolve your dispute in a sympathetic and pragmatic way.
Marcus’ mobile: 0400 619 317
Foley’s List (03) 9225 7777