FAMILY VIOLENCE PROTECTION ACT 2008

Victorian Consolidated Legislation

[Index] [Search] [Notes] [Noteup] [Download] [Help]

FAMILY VIOLENCE PROTECTION ACT 2008

No. 52 of 2008
Version as at 8 December 2008

TABLE OF PROVISIONS

Section Page

PART 1-PRELIMINARY

1. Purpose
2. How purpose is to be achieved
3. Commencement

PART 2-INTERPRETATION

4. Definitions
5. Meaning of family violence
6. Meaning of economic abuse
7. Meaning of emotional or psychological abuse
8. Meaning of family member
9. Meaning of domestic partner
10. Meaning of relative
11. Meaning of family violence intervention order, final order and interim order

PART 3-POLICE PROTECTION BEFORE COURT

Division 1-Holding powers

12. Definitions
13. Criteria for exercise of powers
14. Direction power
15. Detention power
16. Search of person
17. Procedural requirements for person directed to a police station,
or person apprehended and detained
18. Duration of holding powers
19. Extension of periods
20. Telephone or fax application for extension order
21. Police to notify directed person when direction ceases
22. No questioning during holding period
23. Court may hear directed person or affected family member

Division 2-Family violence safety notices

24. Application for family violence safety notice
25. How an application may be made
26. Decision about family violence safety notice
27. Form of family violence safety notice
28. Procedure if safety notice form completed
29. Conditions of family violence safety notice
30. Duration of family violence safety notice
31. Family violence safety notice taken to be application for
family violence intervention order
32. Information to be included in family violence safety notice
33. Address for service
34. Service of family violence safety notice
35. Explanation of family violence safety notice
36. Accommodation
37. Contravention of family violence safety notice
38. Arrest for contravention of family violence safety notice
39. Family violence intervention order prevails over family
violence safety notice
40. Reports
41. Expiry of Division

PART 4-FAMILY VIOLENCE INTERVENTION ORDERS

Division 1-Application for family violence intervention order

42. Where application for family violence intervention order may
be made
43. How application is to be made
44. Application may be made by electronic communication after hours or in remote areas
45. Who may apply for family violence intervention order
46. Application for leave
47. Application for protection of child may be included in
application for protection of child's parent
48. Service of application
49. Registrar may issue summons on application for family
violence intervention order
50. Magistrate or registrar may issue warrant on certain
applications for family violence intervention orders
51. Application on oath, by affidavit or certified if warrant to issue
52. Bail on appearance on arrest

Division 2-Interim orders

53. Court may make interim order
54. Interim order may be made in absence of respondent etc.
55. Application to be supported by oral evidence or affidavit
unless requirement waived
56. Interim order may apply to more than one affected family member
57. Explanation of interim order
58. Interim order made on electronic application
59. Hearing to be listed for decision about final order as soon as practicable
60. Expiry of interim order

Division 3-Proceedings for family violence intervention orders

61. Mention date
62. Legal representation of a child who is not applicant or
respondent
63. Hearing may relate to more than one application
64. Affected family member to be heard separately if application made by guardian
65. Evidence
66. Evidence may be given by affidavit or sworn statement
67. Evidence given by children
68. Court may close proceeding to public
69. Alternative arrangements for proceeding
70. Special rules for cross-examination of protected witnesses
71. Representation of respondent
72. Representation of applicant
73. Expert evidence about family violence

Division 4-Making final orders

74. Power of court to make final order
75. Power to make final order if affected family member has not consented to application
76. Associated final orders
77. Protection of children on court's own initiative
78. Consent orders

Division 5-Conditions of family violence intervention orders

79. Definition
80. Safety of affected person and children paramount in deciding conditions
81. Conditions to be included in family violence intervention order
82. Exclusion of respondent from residence
83. Exclusion of child respondent from residence
84. Court may ask Secretary for report for purposes of section 83.
85. Excluded person to provide new address
86. Conditions about personal property
87. Relationship with orders made by Family Court and other
courts
88. No effect on ownership rights
89. Court to enquire as to whether any other relevant orders for
child
90. Variation of relevant Family Law Act order
91. Decision about contact with child
92. Conditions about arrangements for contact with child if not Family Law Act order
93. Condition prohibiting contact with child
94. Court to enquire about firearms and weapons
95. Suspension or cancellation of firearms authority etc.

Division 6-Explanation of final order

96. Explanation of final order

Division 7-Duration of final order

97. Court may specify period for which order in force
98. Period for which order remains in force if respondent a child
99. Duration of order

Division 8-Variation, revocation and extension of family violence intervention orders
Subdivision 1-Variation and revocation of family violence intervention orders

100. Power of court to vary or revoke family violence intervention order
101. Court may make interim order on application for variation of family violence intervention order
102. Additional protection in varying or revoking orders
103. Continuing protection of protected person who is a child
104. Protection for children who have become family members
since order made
105. Further application for variation etc. of order in respect of
child
Subdivision 2-Extension of final order
106. Power of court to extend final order
107. Interim extension order
Subdivision 3-Application to vary, revoke or extend family
violence intervention order
108. Who may apply to vary, revoke or extend family violence intervention order
109. Application made by respondent for variation or revocation of family violence intervention order
110. Application made by police officer
111. Consent required if applicant is not protected person, guardian, respondent or police officer
112. Protected person's views to be heard separately in certain circumstances
Subdivision 4-Service of applications for variations, revocations
or extensions of orders
113. Persons on whom application must be served

Division 9-Appeals and rehearings
Subdivision 1-Appeals to County Court and Supreme Court

114. Who may appeal
115. Court to which appeal must be made
116. Notice of appeal
117. Stay of relevant decision
118. Appeals not to commence if certain persons object
119. Conduct of appeal
120. No further appeal
121. Application of certain Acts to appeals
Subdivision 2-Rehearings
122. Rehearing of certain proceeding

Division 10-Contravention of family violence intervention order

123. Offence for contravention of family violence intervention order
124. Arrest for contravention of family violence intervention order
125. Protected person not guilty of an offence under section 52 of Magistrates' Court Act 1989.

PART 5-COUNSELLING ORDERS

Division 1-Preliminary

126. Definition
127. Object of Part
128. Application of Part

Division 2-Orders to assess eligibility for and to attend counselling

129. Order to assess eligibility for counselling
130. Order to attend counselling
131. Effect of appeal against final order

Division 3-Procedures relating to counselling orders

132. Notice of hearings
133. Approval of persons and of counselling
134. Person giving report may be required to attend hearing
135. Disputed report
136. Explanation of counselling orders
137. Variation or revocation of counselling orders
138. Service of counselling orders, eligibility report etc.

Division 4-Other matters

139. Certificate of respondent's non attendance
140. Confidentiality of eligibility interview and report
141. Confidentiality of counselling
142. Limited use of information by court
143. Authorisation to collect health information
144. Delegation

PART 6-JURISDICTION OF COURTS AND PROCEEDINGS

Division 1-Jurisdiction of courts

145. Definitions
146. Jurisdiction of courts if affected family member, protected
person or respondent a child
147. Jurisdiction of Children's Court to deal with related
applications
148. Transfer of applications
149. Jurisdiction to revoke, vary or extend orders

Division 2-Provisions about proceedings under this Act

150. Restriction on presence of children
151. Adjournment to seek legal advice
152. Applicant who is police officer may be represented by another police officer
153. Certification
154. Costs
155. Concurrent criminal proceedings
156. Family violence intervention order against carer

PART 7-ENFORCEMENT POWERS

157. Entry and search of premises
158. Surrender of firearms and weapons
159. Power of police officer to search premises for firearms etc. without warrant
160. Warrants to search premises and vehicles
161. Announcement before entry
162. Copy of the warrant to be given to occupier
163. Seizure of firearms etc.
164. Effect of seizure of firearm, weapon or other article if final
order made against person
165. Effect of seizure of firearm, weapon or other article if no
final order etc.

PART 8-RESTRICTION ON PUBLICATION OF
PROCEEDINGS

166. Restriction on publication of proceeding in Magistrates' Court
167. Exception to restriction on publication
168. Identifying particulars
169. Court may allow publication of particulars or picture

PART 9-RELATIONSHIP WITH OTHER ACTS

170. Application of Magistrates' Court Act 1989 and rules
171. Relationship with Firearms Act 1996 and Control of
Weapons Act 1990.
172. Application of principles under Children, Youth and
Families Act 2005 to decisions under this Act
173. Family violence intervention orders prevail over child
protection orders
174. Notice to be given to Secretary to Department of Human
Services
175. Bail conditions prevail over child protection order
176. Relationship with Family Court orders

PART 10-INTERSTATE AND NEW ZEALAND ORDERS

Division 1-Interstate orders

177. Registration of corresponding interstate orders
178. Notice to be given of registration of corresponding interstate orders
179. Registered corresponding interstate orders may be enforced as final orders
180. Variation, extension or revocation of corresponding interstate order by interstate court
181. Variation, extension or revocation of corresponding interstate order by Victorian Court
182. Notice of proposed variation, extension or revocation of corresponding interstate order
183. Notice to be given of variation, extension or revocation of corresponding interstate order

Division 2-Corresponding New Zealand Orders

184. Registration of corresponding New Zealand orders
185. Notice to be given of registration of corresponding New
Zealand orders
186. Effect of registration of corresponding New Zealand orders
187. Variation, revocation or extension of corresponding New
Zealand order

PART 11-VEXATIOUS LITIGANTS

188. Constitution of court
189. Who may apply for order that person is a vexatious litigant
190. Attorney-General may request documents from courts
191. Notice of application by Attorney-General to be served on protected person
192. Notice of application to be served on person proposed to be declared vexatious litigant
193. Order declaring person to be vexatious litigant
194. Leave to make an application under this Act
195. Appeal against order declaring person to be vexatious litigant
196. Application for leave to appeal under Division 9 of Part 4 by vexatious litigant
197. Court may vary, set aside or revoke
198. Attorney-General to publish copy of order in Government Gazette
199. Notice of order to be served on courts
200. Annual report

PART 12-SERVICE OF DOCUMENTS

201. Service of family violence intervention orders
202. Manner of service
203. Proof of service
204. Inability to serve document
205. Person may cause document to be served
206. Certificate of service
207. Disclosure of information by organisations

PART 13-MISCELLANEOUS

Division 1-Jurisdiction of Supreme Court

208. Supreme Court-limitation of jurisdiction

Division 2-Rule-making power

209. Rules of court and practice directions for Magistrates' Court
210. Rules of court and practice directions for Children's Court

Division 3-Regulations

211. Regulation making power

PART 14-REPEAL, TRANSITIONAL AND VALIDATION PROVISIONS

Division 1-Repeal

212. Repeal of Crimes (Family Violence) Act 1987.

Division 2-Transitional provisions

213. Definitions
214. References to repealed Act
215. Intervention orders
216. Interim intervention orders
217. Counselling orders
218. Applications
219. Proceedings
220. Interim intervention order
221. Acts committed before commencement day relevant
222. Protection for protected person applies to acts committed
before commencement day
223. Interstate and New Zealand orders

Division 3-Validation provision

224. Validation of certain interstate orders

PART 15- REPEAL OF COUNSELLING ORDER
PROVISIONS

Division 1-Amendment of Family Violence Protection Act 2008.

225. Definition
226. Appeals
227. Stay of relevant decision
228. Part 5 repealed
229. Jurisdiction to revoke, vary or extend orders
230. Concurrent criminal proceedings
231. Transitional

Division 2-Consequential amendment of Magistrates' Court Act 1989.

232. Jurisdiction of Family Violence Court Division

PART 16-CONSEQUENTIAL AMENDMENTS

Division 1-Amendment to the Bail Act 1977.

233. Entitlement to bail

Division 2-Amendments to the Children, Youth and Families Act 2005.

234. Definition of child
235. Definition of proper venue
236. Jurisdiction of Family Division
237. Jurisdiction of Neighbourhood Justice Division

Division 3-Amendments to the Corrections Act 1986.

238. Information given to victim
239. Inclusion on the victim's register
240. Home detention
241. Contents of home detention assessment report

Division 4-Amendment to the Crimes Act 1958.

242. Stalking

Division 5-Amendments to the Evidence Act 1958.

243. Alternative arrangements for giving evidence
244. Cross-examination of protected witnesses

Division 6-Amendments to the Firearms Act 1996.

245. Definition
246. Power of Chief Commissioner to cancel licence under this
Part
247. Surrender of firearms and licence document
248. Applicant to be deemed not to be prohibited person
249. New section 213 inserted
Protection Act 2008.

Division 7-Amendment to the Health Records Act 2001.

250. Definition

Division 8-Amendments to the Magistrates' Court Act 1989.

251. Definitions
252. Koori Court Division
253. Family Violence Court Division
254. Neighbourhood Justice Division
255. Amendment to Schedule 2.

Division 9-Amendment to the Police Regulation Act 1958.

256. Reportable offences

Division 10-Amendments to the Residential Tenancies Act 1997.

257. Definitions
258. Locks
259. New section 70A inserted
260. Grounds for entry of rented premises
261. What must be in a notice of entry?
262. New sections 233A to 233D inserted
final family violence intervention order
263. Reduction of fixed term tenancy agreement
264. Service of documents

Division 11-Amendments to the Sentencing Act 1991.

265. Home detention
266. Contents of home detention assessment report

Division 12-Amendments to the Victims' Charter Act 2006.

267. Definitions

Division 13-Amendments to the Victorian Civil and
Administrative Tribunal Act 1998.

268. New clause 62A of Schedule 1.
269. New clauses 73A and 73B of Schedule 1.

Division 14-Amendment to the Working with Children Act 2005.

270. Person working with closely related child

Division 15-Repeal of the Magistrates' Court (Family Violence) Act 2004.

271. Repeal of Act

Division 16 -Repeal of Part 16 of the Family Violence Protection Act 2008.

272. Repeal of Part 16.
---------------
ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details

[Index] [Search] [Notes] [Noteup] [Download] [Help]