This website is for use by legal professionals (lawyers and law practices) only. If the information is used incorrectly, you could risk losing money or your legal rights. If you are a member of the public looking for free advice about your legal problems please visit legalaid.vic.gov.au, or contact our Legal Help advice line on 1300 792 387, Monday to Friday from 8 am to 6 pm. 

If you decide to use or rely on the information or make decisions based on the information in this website (which VLA does not recommend) VLA is not liable to you or any third party in any way for any loss, damage, costs or expenses you or they may suffer or incur as a result.

Family violence and bail

Information about how family violence is considered when a person is applying for bail.

The focus on family violence and bail

There is a focus on addressing the risk of family violence in the Bail Act 1977.

The potential risk of an accused person committing family violence is dealt with in several places in the Act. The bail decision maker must ask about family violence orders and must not make any bail orders that are inconsistent with a family violence order or safety notice unless the proposed bail orders would give better protection to the family member.

Some offences under the Family Violence Protection Act will make it more difficult for the accused to get bail as they will require the accused to demonstrate that there is a compelling reason why bail should be granted.

For a definition of family violence see What is family violence?

Court may make interim FVIO during bail proceeding to protect a family member

The court may make an interim family violence protection order on its own motion if satisfied on the balance or probabilities that the order is necessary to ensure the protection of a family member.

The court may do this in a criminal proceeding or in an application or appeal relating to bail, including an application to revoke, vary bail conditions, extend bail or to apply or bail.

The decision must be made based on the material before the court for the bail application, or the criminal proceeding.

If the court makes an interim order and is satisfied that a child has been subjected to family violence committed by the accused, the court must either include the child in the order or make a separate order for the protection of the child. This will depend on whether the child's need for protection is substantially the same as the protective needs of the affected family member.

Any interim order made is taken to be an application for a final order, with the Chief Commissioner of Police, as the applicant. If an interim order is made in a County or Supreme Court hearing, the matter will be transferred to the Magistrates' Court or the Children's Court for future proceedings.

The court cannot make an interim order in circumstances where a family violence intervention order has already been made, or an application is on foot.

See Part 4, Division 2A—Family Violence Protection Act 2008 (Vic)(opens in a new window).

Are any family violence orders in force?

A bail decision maker who is considering releasing a person on bail must ask the prosecutor if any family violence intervention orders, safety notices or recognised domestic violence orders have been issued against the accused person.

See s. 5AAAA Bail Act 1977 (Vic).

If the person has been accused of a family violence offence the bail decision maker must consider whether:

  • there would be a risk that the accused would commit family violence if they released on bail, and
  • if so, whether there are any conditions that could be made to reduce that risk.

The bail decision maker must also consider if making a family violence intervention order could mitigate this risk.

See s. 5AAAA—Bail Act 1977 (Vic).

Surrounding circumstances to be considered

A bail decision maker must look at the surrounding circumstances that are relevant to a matter when they are making a decision whether or not to grant bail. A non-exhaustive list of circumstances that a decision maker must consider are set out in section 3AAA of the Bail Act 1977. These include questions about whether any of the following orders or notices are in force against the accused:

  • a family violence intervention order
  • a family violence safety notice, or
  • a recognised domestic violence.

See s. 3AAA—Bail Act 1977 (Vic).

Unacceptable risk test

The unacceptable risk test must be applied when any bail decision maker is making a decision about whether or not to allow bail. The test includes a number of circumstances that potentially relate to family violence. If the decision maker is satisfied that there is a risk that the accused may do any of the following while they are on bail, the decision maker must refuse bail:

  • endanger the safety or welfare of any other person
  • interfere with a witness or otherwise obstruct the course of justice in any matter, or
  • fail to surrender into custody in accordance with their bail conditions.

An example of an unacceptable risk noted in the Act is that the accused by commit a family violence offence if they were to be released on bail.

The prosecutor has the burden of satisfying the bail decision maker that there is an unacceptable risk.

The bail decision maker must consider the surrounding circumstances when applying this test. If a risk is found then the bail decision maker must see whether there are any conditions that could be imposed to mitigate this risk.

See s. 4E—Bail Act 1977 (Vic).

Bail conditions must be consistent with family violence orders

When a bail decision maker is considering making bail conditions they must make sure that these conditions do not conflict with any family violence intervention order or safety notice that the accused person is subject to. The only exception to this is where the decision maker is satisfied that the condition they propose to make will give better protection to the welfare of the alleged victim or to a protected person.

Family violence notice or order must prevail

If there is an inconsistency between bail conditions and conditions in a family violence order or safety notice to the extent that the accused cannot comply with both orders, then it is the family violence conditions that prevail to the extent of any inconsistency.

See s. 5AAA(2), (3)—Bail Act 1977 (Vic) and ss. 175AA, 175AB—Family Violence Protection Act 2008 (Vic).

No bail unless compelling reason

A person who is charged with persistent contravention of a family violence intervention order or threatening to kill in the context of family violence, must show a compelling reason why they should be eligible for bail.

See clauses 7, 18, 19—Schedule 2 and ss. 4C, 4D—Bail Act 1977 (Vic) and Show compelling reasons.

More information

Legislation

Bail Act 1977 (Vic)

  • s. 3—refers to the Family Violence Protection Act 2008 for definition of family violence, 'family violence offence'
  • s. s. 3AAA—surrounding circumstances
  • s. 4E—unacceptable risk test
  • s. 5AAAA—family violence risks

Family Violence Protection Act 2008 (Vic)

  • s. 37A(2)—contravention of noticed intending to cause harm or fear for safety
  • s. 60A—defines an application or appeal relating to bail
  • s. 60B—court hearing an application or appeal relating to bail may make an interm order on its own motion
  • s. 60C—court may make an interim family violence order on its own motion in criminal proceeding
  • s. 60E—decision to be made based on the material before the court
  • s. 60F—interim order may be made to protect a child
  • s. 60G—magistrate must explain the order to the accused and to the protected person if they are at court
  • s. 60J—interim order is taken to be an application for a final order
  • s. 60K—interim order from higher courts to be transferred
  • s. 123(2)—contravention of a family violence intervention order
  • s. 123A(2)—contravention of order intending to cause harm or fear for safety
  • s. 125A(2)—persistent contravention of notices and orders
  • s. 175AA—relationship between bail conditions and family violence safety notice
  • s. 175AB—relationship between bail conditions and family violence intervention order

Updated