Family Violence; Unlawful Assault
Location: Frankston Magistrates Court
Charges:
Penalties:
- The maximum penalty for unlawful assault (AKA common assault) is a fine of 15 penalty units (approximately $2400) or imprisonment of three (3) months (Please be aware this is very different to common law assault, to understand the difference between common assault and common law assault).
Facts
Our client and his wife had been married for 6 years and they shared a child together.
One morning, the couple had been arguing whilst our client was completing some household duties. Some nasty comments were exchanged and our client asked his wife to give him some space. The comments continued and our client eventually pushed his wife twice in an attempt to get her leave him alone. Their child was not present during the altercation.
Our client’s wife called the police to attend at the home.
Once police attended, our client was interviewed in relation to a charge of unlawful assault. He made full admissions to pushing his wife during the field interview. He was advised that he may be charged.
Additionally, each of the parties were spoken to and police served our client with a family violence safety notice (FVSN) in accordance to section 24 of the Family Violence Protection Act (Vic) 2008. The FVSN named both our client’s wife and child as protected persons. He was summonsed to attend court a few days later in relation to the FVSN.
Family Violence Safety Notice:
Family Violence Safety Notices (FVSNs) are a tool which police are able to utilise when they attend at a family violence incident and they believe, on reasonable grounds, that it is necessary to ensure the safety of an affected family member, to preserve the property of an affected family member or to protect a child who has been subjected to family violence committed by the respondent.
Only officers who hold the rank of Sergeant or higher are able to issue FVSNs but lower ranked police officers are able to apply to their sergeant if they believe that an order is necessary. This can occur over the telephone or via facsimile.
A FVSN acts as a temporary intervention order before the formal application can be brought before a magistrate. The application must be brought before a magistrate within 5 working days following the issuing of the FVSN.
It is important to note that police may issue a FSVN regardless of the wishes of the affected family member(s).
Result:
Our client attended at court in relation to the intervention order prior to engaging our firm. An interim intervention order was made in favour of his wife and child. It was limited in nature and did not exclude him from the property or prevent him from having contact with either party. We believed that police would be conducting a risk assessment prior to the next court date.
He was served with a summons to attend court in relation to a charge of unlawful assault on the same day that he was served with a copy of the interim intervention order.
After having consulted with our client, it was evident that he was incredibly remorseful for his actions and he wished to move forward with his relationship with his wife. His wife through a third party also made it plain that she also wanted to continue with the relationship and that she was not supportive of the intervention order. She stated that she did not realise that by calling the police, the choice of whether further intervention was required was taken out of her hands and placed into those of the attending officers. She had refused to make a statement and had not attended at court on the day that the intervention order was initially heard.
The criminal charges were listed at the court prior to the return of the intervention order. We conducted negotiations with the prosecution and pressed the prosecution to recommend a diversion for our client. The prosecution agreed and following the Magistrate granting diversion in relation to the matter, the client avoided a criminal record. This would usually not occur given that the offence was a family violence related matter but we made sure our client’s wife attended at court on the day and spoke with the prosecutors, as she did not wish for the charges to proceed.
Furthermore, in order for diversion to be considered, the Diversion Coordinator is required to contact the complainant in order to gauge their opinion on a person being offered the opportunity to participate in the diversion program. In normal circumstances, the matter must be adjourned for this to occur. As our client’s wife was present at court, she had a discussion with the Diversion Coordinator on the day and the matter was able to be put to a magistrate on the same day.
Ultimately, a Magistrate reviewed the matter and decided that it was appropriate for our client to participate in the diversion program and a diversion plan was formulated with the sole condition that he complete a men’s behaviour change program.
Intervention Order:
The intervention order (IVO) returned to court and our office liaised with the prosecution. It was discovered that a risk assessment had not been conducted by police as the interim order did not exclude our client from the address.
Our office argued that the application should be withdrawn as the affected family member (being our client’s wife) was not supportive of the application, the child was not present during the incident and our client had entered into a diversion program in relation to the criminal charges.
The prosecution called our client’s wife to confirm her view in relation to the intervention order and ultimately agreed to withdraw the application against our client.
Our client was very appreciative of the opportunity to avoid a criminal record as he works in a professional environment and any entry on his criminal history would likely result in termination.
Furthermore, our client and his wife were grateful that the application for intervention order was withdrawn and they could return to their life together as it was prior to the incident.
If a lawyer from Dribbin & Brown was not involved in this process, the likely outcome here was that the client would have received a criminal record for family violence. A criminal record for family violence could have impacted the clients employment prospects and ability to travel amongst other things.
