Notes on Guideline 8.2 – Respondents

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Listing requirements under guideline 8.2 - Respondents

Under Guideline 8.2, there is no requirement that the matter be listed for a directions hearing or contest for respondents.

If the respondent seeks to apply for a variation of an existing order, the lawyer must be satisfied that there has been a sufficient material change in circumstances to warrant the application for variation and that the proposed application is not inconsistent with any existing Family Law Orders. Assistance can only be recommended once leave has been granted by the court pursuant to section 109 of the Family Violence Protection Act 2008.

If a respondent applies to appeal against the making of a family violence protection intervention order, or to apply for its revocation, then this application cannot be the subject of a recommendation for assistance via the simplified grants assessment process. The applicant would need to apply via the standard grants assessment process and demonstrate there are special circumstances present.

Where a respondent woman or respondent LGBTIQ+ person has been approved a grant of legal assistance under Guideline 8.2 on the basis they have been misidentified as the predominant aggressor by police (refer to the definition below), this grant of assistance will continue in the following circumstances:

  1. where police are granted leave to withdraw as the Applicant and the (misidentified) AFM is then substituted as the applicant by the Court

    OR

  2. where the police’s application is withdrawn, dismissed or struck out, and the misidentified AFM then makes their own family violence intervention order application, and is relying on substantially similar allegations to the withdrawn/dismissed/struck out police application.

Example

The applicant is the respondent in an application for a family violence intervention order. If the order were made, he would be required to stay 200 metres from the applicant’s home. The respondent resides in the same street as the applicant and the result of such an order would mean that the respondent would be unable to attend his home.

VLA position

Assistance should be recommended on the basis that the order would ‘curtail an important right of the respondent’ and a ‘court might be persuaded to make a less restrictive order’ (different terms as to distance etc).

Family law matters and family violence orders

Assistance can be provided to respondents where the order would curtail an ‘important right’. The Family Law Act 1975 provides that a court must take into account the existence of an intervention order. Practically however, this only applies to intervention orders made after a contested hearing. Where an order was made by consent (eg consent without admissions) or if there is an undertaking, no finding of fact has been made.

It is VLA‘s view that:

  1. Where the children of the relationship are included in the proposed order and the order includes provision to allow contact with the children by agreement or in accordance with court orders, the order does not curtail an important right. Ultimately, defending the application for IO itself would not give the applicant the contact s/he desires. The issue would still need to be pursued through the family court.
  2. Where the children of the relationship are included in the proposed order and it does not include provision to allow contact with the children by agreement or in accordance with court orders, the order would curtail an important right.

The respondent’s position in defending the application must be meritorious, ie it is more likely than not that the applicant will not be able to substantiate the allegations set out in the complaint.

If a lawyer in a specific case considers that an 'important right' is curtailed, they should contact VLA Grants and Quality Assurance for a ruling setting out:

  1. The basis upon which it is asserted the other side's application is unmeritorious
  2. The basis on which the making of the order might impinge/restrict on any current or anticipated family law proceedings, and
  3. The prejudice that might be suffered generally if assistance was not granted to defend the application.

Predominant aggressor of family violence

Victoria Police defines the predominant (or primary) aggressor as the party to the family violence incident who, through known history and actions within the relationship, has caused the most physical harm, fear and/or intimidation against the other.

Merit – Misidentification cases

A practitioner may be satisfied there is merit to run a misidentification argument, where they are satisfied on the balance of probabilities:

  1. Their client (the Respondent in police’s application) is the actual victim of family violence in the relationship; and
  2. The other party (adult affected family member in police’s application) is the predominant aggressor of family violence in the relationship (demonstrated by a history and pattern of coercive, controlling and/or violent behaviours by the other party against the client).

For the avoidance of doubt, the evidence the client is willing to give at a contested hearing may be sufficient to demonstrate they are more likely than not to succeed in contesting the application under guideline 8.2.

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, you will either select:

  • Respondent
  • Respondent – Misid Woman
  • Respondent – Misid LGBTIQ+

Documentary requirements

Where assistance is recommended for a respondent to oppose the making of a family violence intervention order, the lawyer’s file must include:

  • the lawyer’s assessment of how the matter meets the relevant guideline.
  • a copy of the application, complaint and interim orders
  • lawyer’s assessment of the strengths and weaknesses of the response
  • where assistance is recommended for a respondent woman or LGBTIQ+ person misidentified by police as the predominant aggressor of family violence, a file note confirming the client’s instructions and their willingness to provide that evidence at a contested hearing.
  • where assistance is approved under the state special circumstances guideline, evidence of the special circumstances must be retained on file.
  • relevant proof of means.

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

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