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Exclusion order from property in family violence matters

Information about excluding a respondent from the family home.

A magistrate must consider whether an intervention order needs to include a condition that excludes the respondent from the protected person's home.

The court will make these conditions if the magistrate thinks that they are needed to protect the safety of the affected family member and any children who are included in the order. Their safety and stability is the most important consideration for the court.

If a respondent is excluded from the family home, it has no effect on the ownership of residence.

If the respondent is a child

The court will look at the situation differently if the respondent is under 18 years at the time of the incident.

The court must make sure that there is adequate support for the child before it can exclude the child from the family home.

This means the court satisfied that the child will have appropriate:

  • alternative accommodation
  • care and supervision
  • access to educational and health services.

The court must also advise the secretary to the Department of Health and Human Services that the order has been made.

If respondent is an Aboriginal child

If the child is an Aboriginal or Torres Strait Islander person they court must also consider a range of other matters to ensure that connections are maintained with their culture and identity before including an exclusion order.

These children should be placed with their extended family where possible.

Respondent subject to CCO

If a court makes:

  • a family violence intervention order, or
  • varies or extends a recognised interstate or NZ domestic violence order

and the respondent to that order also has a community corrections order (CCO) that includes a residence restriction or exclusion condition or curfew condition, the family violence order prevails over the CCO to the extent of any inconsistency.

See s. 175A—Family Violence Protection Act 2008 (Vic)(opens in a new window) and National domestic violence order scheme.

If person detailed by police and subject to a CCO

If the person believed to have committed family violence is subject to a condition as part of their Community Corrections order under the Sentencing Act 1991 (Vic) that may conflict with a safety notice such as:

  • residence restriction
  • exclusion condition, or
  • curfew condition

then the police officer must notify the Corrections Victoria as soon as practical after the person has been directed or detained.

See s. 17(7A), (7B)—Family Violence Protection Act 2008 (Vic)(opens in a new window).

More information

Legislation

Family Violence Protection Act 2008 (Vic)

  • s. 17(7A), (7B)—person subject to curfew or residence restriction
  • Part 4 Div. 5—conditions of a family violence safety order
    • s. 80—safety of the affected person and children in the order are the most important consideration for the court
    • s. 81—conditions to exclude a respondent from a residence
    • s. 82—exclusion of a child respondent from a residences.
    • s. 82(1)—court must consider whether an exclusion condition is necessary when it makes an order
    • s. 83—exclusion of child respondent from residence
  • s. 175A—relationship with community corrections orders
  • Part 16 Div. 10—Amendments to the Residential Tenancies Act

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

Updated