Family Violence Intervention Orders ("FVIO") are commonly granted by the court to ensure the safety of the applicant or protected person by precluding another person from engaging in a certain conduct. At times, applicants may seek to extend their FVIO as they consider the threat to their safety persistent while the order is due to end.
In this article, we will explain how an IVO can be extended, and what to consider when applying or opposing the application for extension.
Family Violence in Legislation
Section 106 of the Family Violence Protection Act 2008 grants the court the power to extend a Family Violence Intervention Order (FVIO) if the court is satisfied, on the balance of probabilities, that if the order is not extended, the respondent is likely to commit family violence against the protected person.
The definition of family violence at law is broad and includes any behaviour that:
- is physically or sexually abusive; or
- is emotionally or psychologically abusive; or
- is economically abusive; or
- is threatening; or
- is coercive; or
- in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; or
- could cause a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to above.
Considerations for Applying/Opposing Applications for Extension
To apply for extension, the applicant needs to address that the risk of family violence continues to exist. This often means that the applicant needs to present some type of evidence of recent incidents of threats or harassment to demonstrate their need for ongoing protection and that the initial FVIO duration was insufficient for their protection. If the applicant gave evidence that they feel unsafe, this may also be taken into consideration by the court.
The court tends to adopt a more holistic view when assessing the need for an extension. Some key considerations are listed as follows:
- The circumstances of the initial FVIO, including the initial allegations made and whether the initial order was consented by the respondent without admission.
- How long the FVIO has been in place and how long it has been since the last alleged incident of family violence took place that led to the making of the order in the first place.
- The respondent's compliance with the order. If the respondent has breached the FVIO in the past, the court may not only extend the FVIO but also add more stringent conditions to the order.
- Any changes in circumstances, for instance the applicant has moved to a new location, or that the respondent has been consistently undertaking counselling and/or rehabilitation programs.
- If there are children involved in the order, the court will also take their safety and wellbeing into account, particularly any evidence regarding the impact of family violence on children.
Procedure
The application to extend an IVO has the same procedure as a regular IVO application.
Upon the applicant filing an application seeking to have the order extended, the matter will firstly be listed for Mention. At this first occasion, the respondent will be asked to indicate if they intend to oppose to the extension. If so, the matter will then be listed for a Directions Hearing and the parties be ordered to file Further and Better Particulars. It is also the expectation that parties will engage in further resolution discussions. If the matter is not resolved, a contested hearing will be booked where witnesses can be called and the presiding magistrate will make a determination upon hearing all evidence from both parties.
In between each court dates, an interim extension order will be put in place. That interim extension order remains in force until a final determination has been made by the court.
Get Legal Representation
It is important to note that having a FVIO with longer duration in place means that there might be a higher risk for breaches. A breach of FVIO is criminal in nature, and the respondent will face criminal charges. It is often not in the respondent's best interest to agree to an extension if there is no sound basis for the application. It therefore becomes crucial for the respondent to engage legal representation for guidance through this complex and stressful process, for effective resolution and to avoid any further criminal ramifications.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
