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Detention

Information about police powers to detain someone who has been involved in a family violence matter.

If a person refuses or fails to comply with a direction given to them by police, the police may use reasonably necessary force to detain the person, either at police station or another place. Police must believe that the person is an adult and that detention is necessary to ensure the safety of the affected family member or their property. Police may use their powers to detain a person if they:

  • intend to apply for:
    • a family violence intervention order
    • an order to vary a family violence intervention order (or a recognised domestic violence order)
    • a family violence safety notice, and
  • reasonably believe that:
    • an intervention order or safety notice has been issued but not served and they intend to serve a copy of the order on the person detained, or
    • the person is a respondent to a recognised domestic violence order and they intend to get a copy of that order (and if the order has not been served, serve it on the person).

A recognised domestic violence order is an order or notice that has been made in another state or in New Zealand that is recognised under the National domestic violence order scheme.

It is an offence to escape or attempt to escape from detention. The maximum penalty is 2 years imprisonment.

See s. 49E—Summary Offences Act 1966 (Vic) and ss. 13, 13A—Family Violence Protection Act 2008 (Vic) and National domestic violence order scheme.

Rights of someone who has been directed or detained at a police station

If a person is directed to remain at a police station or is detained at a police station, they must be informed and given a notice about their right to:

  • contact a friend or family member (other than the affected family member) to inform them of their whereabouts. The only exception to this is if police believe this would jeopardise the safety or property of the affected family member
  • contact a lawyer
  • get an interpreter if required.

This notice must be given as soon as possible after the person is apprehended or detained.

The person is not permitted to contact an affected family member.

See s. 17—Family Violence Protection Act 2008 (Vic) and r. 6, Form 1—Family Violence Protection Regulations 2018 (Vic).

Time limits for detention or complying with a police direction

The time period of a direction or a detention is limited to 6 hours although there are exceptions to this.

However, the person's detention must end if:

  • a family violence safety notice or recognised family violence order is served on the person (unless the police reasonably believe that further measures are required to ensure the safety of the affected family member)
  • a warrant is issued for the person’s arrest
  • the police decide not to apply for a family violence safety notice or family violence intervention order or withdraw an application
  • a family violence safety notice, family violence intervention order or warrant for the person’s arrest is refused by the court
  • police discover that no intervention order has been made
  • police get a copy of a recognised DVO that they were seeking
  • police become aware that the person is not a respondent to a recognised DVO
  • an intervention order is withdrawn.

The person under direction or detention must be informed immediately when the power ceases and must be released immediately if they have been detained.

See ss. 13., 13A, 18—Family Violence Protection Act 2008 (Vic).

Extension

Police may apply to the court to extend the period up to a maximum of 10 hours, but not where police are applying for a family violence safety notice.

Police may apply to extend the period of detention by phone, fax or other digital communication outside court hours, including weekends.

See s. 20—Family Violence Protection Act 2008 (Vic).

Exception to time limit

Even if police have served the respondent with an intervention order or safety notice, they may continue to detain a respondent if they have reasonable grounds to believe that the direction or detention is necessary to protect the affected family member. So for example if the respondent tells police that he is going to 'teach her a lesson when he gets out' they may decide that detaining the person for longer is necessary.

See s. 18(3)—Family Violence Protection Act 2008 (Vic).

If person is subject to a Community corrections order

If the person is subject to a community corrections order (CCO) and there is a condition in that order that has a residence restriction, exclusion condition or curfew attached to the order, the police must advise the Department of Justice and Regulation as soon as practical to let them know that the person has been detained.

See s. 17(7A), (7B)—Family Violence Protection Act 2008 (Vic).

No police questioning

Police are prohibited from interviewing or questioning a person who is under a direction or in detention about any offence or alleged offence.

More information

Legislation

Family Violence Protection Act 2008 (Vic)

  • Part 3 Div. 1—holding powers
  • s. 13—criteria for exercise of powers
  • s. 13A—criteria for exercise of powers under the national domestic violence order scheme
  • s. 14—direction power
  • s. 15—detention power
  • s. 16—power to search a person
  • s. 17—procedural requirements for person directed to a police station or apprehended and detained
  • ss. 18, 19, 20—how long police can hold a person
  • s. 21— police to notify directed person when direction ceases
  • s. 22—no questioning during holding period

See Family Violence Protection Act 2008 (Vic).

Family Violence Protection Regulations 2018 (Vic)

  • r. 6—notice of rights and responsibilities
  • Form 1—information about holding powers to be given to a directed or detained person

See Family Violence Protection Regulations 2018 (Vic).

Summary Offences Act 1966 (Vic)

  • s. 49E—escaping from lawful custody

See Summary Offences Act 1966 (Vic).

Updated