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Interim orders on court's own motion

Information about the power of the court to make an order on its own motion in a bail or criminal proceeding if the court believes it is necessary to protect a family member from the accused.

A court may, on its own motion, make an interim family violence intervention order, during a criminal or bail proceeding, if the court believes that it is necessary, on the balance or probabilities, to protect a family member before a final order can be decided.

If an order is made, it is taken to be an application for a final family violence intervention order and the Chief Commissioner of Police is taken to be the applicant.

See ss. 60A, 60B, 60C, 60J—Family Violence Protection Act 2008 (Vic)(opens in a new window).

What is a bail proceeding?

For the purposes of this power, a bail proceeding is:

  • an application for bail
  • an application to extend bail
  • an application to revoke bail
  • an application to vary the conditions of bail
  • an appeal against a refusal to revoke bail
  • an appeal by the DPP against the insufficiency of bail.

See s. 60A—Family Violence Protection Act 2008 (Vic)(opens in a new window).

When the court may make an interim order during a criminal proceeding

A criminal proceeding is interpreted very broadly. It can be made at any stage during the criminal proceeding, including:

  • during a committal hearing
  • trial
  • sentencing hearing
  • appeal.

The court may make an order on its own motion regardless of whether:

  • the accused is found guilty or the offence, or
  • the charge is withdrawn
  • prosecution is discontinued.

See s. 60C—Family Violence Protection Act 2008 (Vic)(opens in a new window).

Exceptions

The court cannot make an interim order to protect a family member from the accused if:

  • there is already an order in place to protect that family member
  • there is an application for an intervention order yet to be decided.

See ss. 60B(3), 60C(4)—Family Violence Protection Act 2008 (Vic)(opens in a new window).

Making an interim order to protect a child

If the court make an interim order on its own motion, the court must make an interim order to protect a child if satisfied on the balance of probabilities that the child has been subjected to family violence committed by the accused and it is necessary to do so to protect the child until the final order can be heard.

The court may either include the child on the interim order to protect the affected family member, or can make a separate interim order to protect the child. This depends on whether or not the court believes that the child's need for protection is substantially the same as the protective needs of the family member or not. If not, a separate order must be made.

See s. 60F—Family Violence Protection Act 2008 (Vic)(opens in a new window).

Information relied on to decide

The court must make a decision about whether or not to grant the interim order based on the material that it before it in the criminal or bail proceeding.

See s. 60E—Family Violence Protection Act 2008 (Vic)(opens in a new window).

Interim order made by the higher courts

If an own motion interim order is made by one of the superior courts, the proceeding for the final order is transferred to the Magistrates' Court or the Children's Court for determination. Once transferred, these courts have the power to revoke or vary the interim order as the case requires.

If the matter is transferred to the Magistrate's Court or the Children's Court, the proceeding for the final order must be listed for mention within 14 days of:

  • making the order (if the accused was at court)
  • the accused being served with the order (if they were not at court).

The hearing for the final order must be heard as soon as possible.

See ss. 60K, 60L—Family Violence Protection Act 2008 (Vic)(opens in a new window).

Information and documents that must be given

If the accused and/ or the protected person is at court when the interim order is made the court must clearly explain:

  • the purpose, terms and effect of the order
  • the consequences and penalties that may follow if the respondent fails to comply with the order
  • that the order may be enforced in any state or territory in Australia
  • when the order expires and how the order may be varied
  • the order is a civil order of the court and the protected person cannot give permission to contravene the order
  • the process for deciding the final order
  • how the order interacts with the family law act and the order under the Children, Youth and Families Act 2005
  • if the court has varied, suspended, revoked or revived a Family Law Act order, the purpose, terms and effect of the variation or suspension
  • any family violence services offering legal, emotional or practical support that may be available to the protected person or the respondent.

This must also be given to the accused in written form if they are in court when the order is made.

If the accused is before the court when the interim order is made, the court must give them a copy of the order and a statement that briefly outlines the reasons for making the order. If not, this must be served on the accused.

Service of the order

If the accused is not at court (or if they are a child) when the interim order is made, the court registrar must arrange for service of:

  • a copy of the order
  • a brief written statement explaining the reasons for making the order
  • a written notice that explaining the matters listed above as prescribed in the Rules.

If the protected person is not at court, the court must also serve this information to them.

See ss. 57, 60G, 60H, 60I —Family Violence Protection Act 2008 (Vic)(opens in a new window).

More information

Legislation

Family Violence Protection Act 2008 (Vic)

  • s. 57—explanation of interim order
  • Part 4, Division 2A—interim orders made on court's own motion in bail proceeding or in criminal proceeding
    • s. 60A—defines an application or appeal relating to bail
    • s. 60B—court hearing application or appeal relating to bail may make own motion interim order
    • s. 60C—court may make interim order on its own motion in a criminal proceeding
    • s. 60D—prosecutor is not a party to the proceeding for an interim order
    • s. 60E—material before the court for making interim orders on court's own motion
    • s. 60F—interim order to protect child on court's own motion
    • s. 60G—oral explanation of the interim order
    • s. 60H—documents to be given to adult accused who is before the court
    • s. 60I—service of interim order and other documents
    • s. 60J—interim order taken to be application for a family violence intervention order and treated as application under this Act
    • s. 60K—interim orders made by Supreme Court or County Court to be transferred to Magistrates' Court or Children's court for final determination
    • s. 60L—mention date and proceeding for final order

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

Updated