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Court proceedings relating to family violence

Information about serving an application and summons, warrant and what happens with bail.

What happens at court depends on how the respondent chooses to respond to the intervention order.

The respondent can:

  • consent to an intervention order being made
  • ask for an undertaking
  • contest the application
  • ignore the summons and not go to court.

If both the affected family member and the respondent consent to, or do not oppose, the making of an order, a magistrate can make a final order if the respondent is an adult without making admissions.

However, orders will not be able to be made (varied, revoked or extended) against children unless the magistrate is satisfied on the balance of probabilities that family violence has taken place.

In addition, the court has the power to refuse to make a final order by consent if it believes the order may pose a risk to the safety of one of the affected family member, a child of the protected person or respondent.

This is a broad power and may potentially be used if the court believes an order does not offer sufficient protection to an affected family member or child.

Undertakings

A respondent can ask the applicant whether they would accept an undertaking. An undertaking is an agreement drawn up between the parties of the intervention order. This is a formal written promise to the person who needs protection (and to the magistrate) that the respondent will not behave in any way stated in the undertaking.

The applicant does not have to accept an undertaking. It’s their choice. An undertaking is an agreement between the parties only. It is not an order and police cannot enforce it, breaking the conditions of an undertaking is not a criminal offence.

If both sides agree to the undertaking, the application for the intervention order can be adjourned. If the respondent doesn't break the conditions agreed to, the applicant can withdraw the application for an intervention order.

Withdrawing or striking out the application

The court can strike out an application if:

  • the applicant does not show up at court on the day of the hearing
  • the magistrate believes there are no grounds for making an intervention order
  • the applicant no longer wants the order to be made, or
  • all parties agree to an undertaking.

Undertakings no longer have a right of reinstatement.

The application for the intervention order can be withdrawn if the parties agree to an undertaking. If the respondent breaks the undertaking, the applicant will need to make a fresh application.

Contested hearing

The court must not hear a contested application on the first mention date unless it is satisfied with all of the following:

  • all parties have had an opportunity to seek legal advice
  • all parties consent to the contested hearing proceeding
  • hearing the contested application is fair and just to all parties.

The court may make final orders on the mention date if the parties consent to the making of an order.

See s. 61—Family Violence Protection Act 2008 (Vic)(opens in a new window).

Court conduct

The court may close the proceeding to the public and it is an offence to contravene the closed court order.

The court may direct legal practitioners to remain seated. The court must do this if the witness is a child unless it is inappropriate to do so in the circumstances.

The court must consider any children before making a final order.

See ss. 68, 73I—Family Violence Protection Act 2008 (Vic)(opens in a new window) and Family violence and children.

Multiple applications

A magistrate can choose to hear more than one application for a stalking and/or family violence intervention order if the applications are related and the magistrate believes that it is in the interests of justice to do this.

See s. 63—Family Violence Protection Act 2008 (Vic)(opens in a new window).

Costs

Each party to a proceeding for a family violence intervention order or a proceeding for a variation, revocation or extension of a recognised domestic violence order has to pay for their own party's costs of the proceeding. However, the court can make an order about costs if the court decides there are exceptional circumstances to warrant this.

See s. 154—Family Violence Protection Act 2008 (Vic)(opens in a new window).

More information

Legislation

Family Violence Protection Act 2008 (Vic)

  • s. 61—court may make a final order on the mention date if all parties consent or do not oppose the order and it is fair and reasonable to do so
  • s. 63—hearing may relate to more than one application
  • s. 66—evidence may be given by affidavit or sworn or affirmed statement (may be called as a witness to be cross-examined)
  • s. 68—court may be closed to the public
  • s. 69—alternative arrangements for proceeding may be made
  • s. 70—special rules for cross-examination of protected witnesses
  • s. 71—Victoria Legal Aid must provide legal representative for unrepresented respondent who has no legal representation to avoid cross-examination of the protected witness
  • s. 72—Victoria Legal Aid must provide legal representation for the protected witness for cross-examination by the respondent's legal representatives
  • s. 74—power of the court to make a final intervention order
  • s. 78—consent orders
  • s. 78(2)—consent orders where the respondent is a child
  • s. 171A—relationship with stalking and family violence intervention orders (multiple, related applications)
  • s. 154—costs

See Family Violence Protection Act 2008 (Vic)(opens in a new window).

Updated