Where the Affected Family Member has children in their care section 77 of the Family Violence Protection Act 2008 (Vic) gives to the Court discretion in the making of an Intervention Order to extend such order to include these children.

The usual experience is such circumstances will be to include the children as a matter of course, although in circumstances where the children are not the Respondent’s children or there are clearly no circumstances that indicate the children require protection there is scope to argue for their exclusion.

As to evidence of children, section 67 of the Family Violence Protection Act 2008 (Vic) states that children are not to give evidence in Intervention Order hearings, except with the leave of the Court. Our experience in this regard is that only in very rare cases should children ever be called to give evidence.

In circumstances where there are existing Family Court Parenting Orders in place section 68R of the Family Law Act  1975 (Cth) gives to the Magistrates Court the power to suspend the operation of such orders if deemed to be in the interests of the children – that is the Magistrates Court can take away a parents rights to see their children if an Intervention Order Application is made against them.