Notes on Guideline 8.1a – Affected family members in police applications

Safety considerations

When assessing eligibility under this guideline, practitioners should take reasonable steps to ensure the adult affected family member’s (AFM) instructions are their own. If a practitioner is concerned about duress or coercion, they should advise the affected family member whether the Respondent is in breach of their intervention order and offer a warm referral to an appropriate specialist family violence professional for safety planning.

Full no-contact interim order

Interim intervention orders are designed to provide urgent, short-term protection for an affected family member. The purpose is to protect the affected family member until the court can consider whether to make a final intervention order. Full no-contact conditions means the Respondent is prohibited from contacting and communicating, and/or approaching or remaining within a certain distance of the affected family member, or their home, work or educational facility.

Merit

VLA's state reasonableness test applies to Guideline 8.1a. For the avoidance of doubt, the evidence that the adult AFM is willing to give at a contested hearing may be sufficient to demonstrate merit under guideline 8.1a.

Where the applicant is an adult AFM and, there are no additional AFM children subject to the police’s application:

1. The AFM has merit to oppose the police position of seeking full no-contact conditions on a final order by virtue of section 75 of the Family Violence Protection Act 2008 (FVP Act).
2. The question of whether there is merit to oppose final orders will depend on the practitioner’s assessment of:
   1. the evidence of family violence or risk of family violence in the case; and
   2. the likelihood the Court will be satisfied a final order be made pursuant to section 74(1) of the FVP Act.

Where the applicant is an adult AFM and, and there are additional AFM children subject to the application, the following should be taken into account:

1. The provision of legal assistance is to the primary adult AFM subject to the police’s application for a family violence intervention order.
2. Practitioners should advise adult AFM clients about any potential child protection intersections arising from their client’s instructions.
3. Where Victoria Police are relying on Department of Families, Fairness and Housing (DFFH) letters to support, full no-contact condition between the respondent and additional AFM children, the practitioner should contact the local DFFH office. Practitioners then should advise their AFM client. If necessary refer to a child protection lawyer for proactive advice.
4. Where agreement is reached with police in relation to the adult AFM, however, the Court is not prepared to finalise the application until a final decision is made in relation to additional AFM children, the practitioner may continue to act under the grant until a final decision is made by the Court in relation to the police’s application.
5. The Court can order separate representation of children over 10 years of age. Consider whether it is appropriate with the circumstances of the case for the Court to make a section 62 order (see Guideline 8.4) and adjourn to the Children’s Court for the AFM child’s views to be heard.

Example

After an incident involving violence, a member of the police force has made an application for a family violence intervention order on behalf of the affected family member (AFM). The matter is listed for a first return date (mention). A family violence safety notice has been issued and AFM does not agree with the police seeking a full no-contact order continuing to prohibit contact/communication with the respondent.

Application requirements

To apply for a grant of legal assistance under this guideline, practitioners should use the ‘Simplified Process – Family Violence’ ATLAS application template. On the guideline statement screen of the application, practitioners will select ‘FV APP (AFM contesting police app)’.

Documentary requirements

Lawyers seeking a grant of legal assistance via the simplified grants assessment process should submit an application via ATLAS, only after ensuring that all the following documents are retained on file:

• a reference to how Guideline 8.1a is satisfied
• a copy of the application for a family violence intervention order including the complaint, and interim order
• relevant proof of means
• documentary proof of any State special circumstances.

To ensure that all requirements are met, refer to the guideline worksheet.