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Family Violence from Legal Perspective

  1. Procedures of Prosecution

The procedures for family violence matters are basically the same as for other criminal matters. Generally, victims will firstly report to the police who then will file a case and conduct investigations. If there is enough evidence, the police officer who is responsible for the case will prosecute the accused as an informant. Therefore, it is the police rather than the victim who brings the accused to the court.

Tips

What is the reason that victims cannot withdraw the court process against the accused even if they wish to do so?

In Australia, criminal cases are prosecuted through government agencies. When a victim of family violence reports to the police, the police must file a case and conduct investigations. Depending on the strength of evidence, the police have discretion to decide whether to prosecute the accused.

Once the case is filed, the matter is taken over by the police and the victim has no right to choose whether the police prosecute the accused. In the prosecutions, the police are in the name of the Queen on behalf of Australian people. Family violence is intolerable in the eyes of Australian people and the accused is punished in this perspective. Therefore, the victims do not have much influence in whether to prosecute.

Generally, unlawful assault is the most common criminal charge for family violence matters. Unlawful assault if a summary offence which will be dealt with by courts in a relatively simple and quick manner. For example, if the accused decides to plead guilty, the magistrate may convict the accused at the first mention hearing and end the case with a fine. The whole process is very efficient and it may only take a month from the offence happened to the conclusion of the case. If the accused decides to defend, the magistrate will usually set a date for the final hearing at which the magistrate will look at the evidence from both sides and decide whether the accused is guilty and how to punish.

In family violence matters, we often see that the police send a Family Violence Safety Notice to the accused when the case if filed.

The Safety Notice is only temporary. The police will generally apply to the court for the Family Violence Intervention Order at the same time. In the first mention of the order application, the magistrate will normally grant a temporary order and set a date for the final hearing. Once the temporary order takes effect, the Safety Notice will automatically become invalid. The temporary order will continue to be effective until the date of the final hearing. At the final hearing, the magistrate will decide whether to grant a final order after hearing all evidence.

Safety Notice and Intervention Order could stop the accused from conducting family violence to the victim. They may include:

  • The accused must not contact the victim in any form
  • The accused cannot be within 5 meters from the victim
  • The accused cannot be within 200 meters from the victim’s home or workplace
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Tips

A temporary intervention order has a short-term effect. It is granted by magistrates before a final intervention order is made. If magistrates believe that you and your family are unsafe and need immediate protection, they will grant a temporary order. Magistrates can grant a temporary order even if the accused does not appear in court or is not aware of it. A temporary order has the same effect as a final order.

A final intervention order has a long-term effect. Magistrates may make a final order after hearing all evidence at the contested hearing. Magistrates must be certain that the accused has conducted family violence and is likely to do so again.

Once a final order is granted, the accused must obey the strict conditions. If the accused violates the order, they may face criminal prosecutions by the police. However, the victim or the protected person could apply to the court to modify the conditions.

  1. What constitutes family violence?

The definition of family violence is quite broad in Victoria. It includes not only physical abuse, but also threat, coerce, emotional or psychological abuse, and economic abuse.

Emotional or psychological abuse

Section 5 of Family Violence Protection Act says that emotional or psychological abuse is one form of family violence. Section 7 provides the definition of emotional or psychological abuse – behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person.

Psychological and emotional abuse is a type of behaviours that hurt others emotionally and spiritually. Although it does not cause physical harm, it will bring mental pain and distress. When someone continues to harm you mentally and maliciously, making you feel fear and shame and other negative emotions, it is a kind of abuse. Specific examples include:

  • repeated derogatory taunts, including racial taunts;
  • threatening to disclose a person’s sexual orientation to the person’s friends or family against the person’s wishes;
  • threatening to withhold a person’s medication;
  • preventing a person from making or keeping connections with the person’s family, friends or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person’s cultural identity;
  • threatening to commit suicide or self-harm with the intention of tormenting or intimidating a family member, or threatening the death or injury of another person.

When dealing with people, everyone will make mistakes, but if the above situations continue to occur and cause you to suffer a lot of mental pain, you should seek help to protect yourself. If you have suffered any form of family violence, please contact your lawyer immediately. Your lawyer can help you apply for a family violence intervention order to change the situation.

Economic abuse

Section 5 of Family Violence Protection Act says that economic abuse is one form of family violence. Section 6 provides the definition of economic abuse – behaviour by a person (the first person ) that is coercive, deceptive or unreasonably controls another person (the second person ), without the second person’s consent in a way that denies the second person the economic or financial autonomy; or by withholding or threatening to withhold the financial support necessary for meeting the reasonable living expenses of the second person or the second person’s child.

Examples of economic abuse include:

  • coercing a person to relinquish control over assets and income;
  • removing or keeping a family member’s property without permission, or threatening to do so;
  • disposing of property owned by a person, or owned jointly with a person, against the person’s wishes and without lawful excuse;
  • without lawful excuse, preventing a person from having access to joint financial assets for the purposes of meeting normal household expenses;
  • preventing a person from seeking or keeping employment;
  • coercing a person to claim social security payments;
  • coercing a person to sign a power of attorney that would enable the person’s finances to be managed by another person;
  • coercing a person to sign a contract for the purchase of goods or services;
  • coercing a person to sign a contract for the provision of finance, a loan or credit;
  • coercing a person to sign a contract of guarantee;
  • coercing a person to sign any legal document for the establishment or operation of a business.

People are often unaware that they have suffered economic abuse. Economic abuse is illegal. If you have suffered any form of family violence, please contact your lawyer immediately. Your lawyer can help you apply for a family violence intervention order to change the situation.

  1. How couples could do to save the serious consequences?

If the accused is prosecuted by the police, it is highly likely that a criminal record will be left. There are generally two practical options to avoid criminal records.

1) Persuade the police to allow diversion program

If successful, the accused will have 12 months to fulfil the conditions set by the magistrate. The usual conditions include donating to some charitable organisations and participating in Men’s Behaviour Change Program.

2) Successfully defend in the hearing

In this way, there will not be any criminal record left. If the victim does want the accused to have a criminal record, we advise that they should clearly express their opinions to the police. Particularly, the victim could write a letter to the informant, indicating that they do not want the police to prosecute the accused and that they wish the informant to review the whole matter and consider allowing a diversion program.

However, under normal circumstances, the police have the signed affidavit of the victim and they are willing to enter the final hearing only with the affidavit. Therefore, it is a bit difficult for the accused to successfully obtain diversion program in the family violence matters. Success needs many supporting factors such as young offender, first-time offence, less serious consequences, etc. The general attitude of the Australian community is that family violence must be punished harshly.

 

Tips

What are the conditions for a diversion program? The basic conditions include less serious consequences, first-time offender, and remorse. However, some activities with less serious consequences are out of the cover of a diversion program, including overspeed driving, drunk driving, and drugged driving.

Other positive factors for a diversion program include:

  • apologised to the victim and obtained forgiveness
  • paid the victim’s loss
  • was under influence of alcohol
  • no previous criminal record and low possibility for future offence
  • willing to undertake or obey the conditions such as alcohol treatment and anger management treatment
  • seriously affected by a criminal record – such as losing the job or income
  1. Penalties for family violence

Most family violence matters are relatively less serious violent matters. If the accused is a first-time offender and the victim does not hurt seriously, then the normal penalties may include a criminal record, donating, and participating in some behaviour change program or anger management program. The possibility of imprisonment is quite low unless the consequences are very serious.

A criminal record is a serious punishment for most people. In Victoria, the criminal record is permanent. Once you have a criminal record, it will affect your future employment as many large companies require no criminal record when recruiting.

In addition, the criminal record will also affect visa applications. In 2019, the Direction No. 79 began to require that visa officers treat violent crimes against children and women as serious crimes regardless of whether the visa applicant was sentenced to imprisonment. Therefore, once you have a criminal record of family violence, it is highly likely that you will not pass the character standards of immigration, resulting in rejection of your visa.

  1. How should victims defend their rights?

The best way is to call the police in time and ask them to help apply for an intervention order. Subsequently, if the accused violates the order, the victims should notify the police in time and ask them to deal with the matter. If the violence is serious, the order may force the accused to remove from the residence. We generally advise the victims to inform their families or friends about the situation. When the order is expired and the victims need to meet the accused in person, we advise that they bring a friend. The first advantage is that the friend could call the police in time if anything happens and the second advantage is that there will be one more witness if anything happens. Objectively speaking, the victims are under comprehensive protection from the police.

Conclusion

In Australia, family violence matters are generally considered relatively serious. Victims could better protect themselves by learning the judicial procedures regarding family violence. If you have suffered any injuries related to family violence or need help in the judicial process, please consult our experienced lawyers.