Victorian Current Acts

FAMILY VIOLENCE PROTECTION ACT 2008

TABLE OF PROVISIONS

           Preamble

   PART 1--PRELIMINARY

   1.      Purpose  
   2.      How purpose is to be achieved  
   3.      Commencement  

   PART 2--INTERPRETATION

   4.      Definitions  
   5.      Meaning of family violence  
   6.      Meaning of economic abuse  
   7.      Meaning of emotional or psychological abuse  
   8.      Meaning of family member  
   9.      Meaning of domestic partner  
   10.     Meaning of relative  
   11.     Meaning of family violence intervention order, final order and interim order  

   PART 3--POLICE PROTECTION BEFORE COURT

           Division 1--Holding powers

   12.     Definitions  
   13.     Criteria for exercise of powers  
   13A.    Criteria for exercise of powers—recognised DVOs  
   14.     Direction power  
   15.     Detention power  
   16.     Search of person and seizure of objects  
   17.     Procedural requirements for person directed to a police station, or person apprehended and detained  
   18.     Duration of holding powers  
   19.     Extension of periods  
   20.     Telephone or fax application for extension order  
   21.     Police to notify directed person when direction ceases  
   22.     No questioning during holding period  
   23.     Court may hear directed person or affected family member or protected person  

           Division 2--Family violence safety notices

   24.     Application for family violence safety notice  
   25.     How an application may be made  
   26.     Decision about family violence safety notice  
   26A.    Issue of family violence safety notice if recognised DVO in place  
   27.     Form of family violence safety notice  
   28.     Procedure if safety notice form completed  
   29.     Conditions of family violence safety notice  
   30.     Duration of family violence safety notice  
   31.     Family violence safety notice taken to be application for family violence intervention order  
   32.     Information to be included in family violence safety notice  
   33.     Address for service  
   34.     Service of family violence safety notice  
   35.     Explanation of family violence safety notice  
   36.     Accommodation  
   37.     Contravention of family violence safety notice  
   37A.    Contravention of notice intending to cause harm or fear for safety  
   38.     Arrest for contravention of family violence safety notice  
   39.     Family violence intervention order prevails over family violence safety notice  
   40.     Family violence safety notice prevails over existing recognised DVO  

   PART 4--FAMILY VIOLENCE INTERVENTION ORDERS

           Division 1--Application for family violence intervention order

   42.     Where application for family violence intervention order may be made  
   43.     How application is to be made  
   45.     Who may apply for family violence intervention order  
   46.     Application for leave  
   47.     Application for protection of child may be included in application for protection of child's parent  
   48.     Service of application  
   49.     Registrar may issue summons on application for family violence intervention order  
   50.     Magistrate or registrar may issue warrant on certain applications for family violence intervention orders  
   51.     Application by affidavit or certified if warrant to issue  
   52.     Bail on appearance on arrest  

           Division 2--Interim orders

   52A.    Court to consider any children before deciding on interim order  
   53.     Court may make interim order  
   53AA.   Court must make interim order for a child if court makes interim order for affected family member  
   53AB.   Interim protection of child on court's own initiative—interim order not made for affected family member  
   53A.    Interim family violence intervention order where existing personal safety intervention order  
   54.     Interim order may be made in absence of respondent etc.  
   55.     Evidentiary requirements for making interim orders  
   56.     Interim order may apply to more than one affected family member  
   57.     Explanation of interim order  
   57A.    Explanation of interim order—child respondents  
   58.     Interim order made on electronic application by police  
   59.     Hearing to be listed for decision about final order as soon as practicable  
   60.     Expiry of interim order  

           Division 2A--Interim orders made on court's own motion in bail proceeding or in criminal proceeding

   60A.    Definitions for this Division  
   60B.    Court hearing application or appeal relating to bail may make own motion interim order  
   60C.    Court may make interim order on its own motion in a criminal proceeding  
   60D.    Prosecutor not party to proceeding for interim order  
   60E.    Material before the court for making interim orders under this Division  
   60F.    Interim order to protect child if interim order made under section 60B or 60C  
   60G.    Oral explanation of interim order  
   60H.    Documents to be given to adult accused who is before the court  
   60I.    Service of interim order and other documents  
   60J.    Interim order taken to be application for a family violence intervention order and treated as application under this Act  
   60K.    Interim orders made by Supreme or County Court to be transferred to Magistrates' or Children's Court for final determination  
   60L.    Mention date and hearing for proceeding for final order  

           Division 3--Proceedings for family violence intervention orders

   61.     Mention date  
   62.     Legal representation of a child who is not applicant or respondent  
   63.     Hearing may relate to more than one application  
   64.     Affected family member to be heard separately if application made by guardian  
   65.     Evidence  
   66.     Evidence may be given by affidavit or sworn or affirmed statement  
   67.     Evidence given by children  
   67A.    Court may issue warrant to arrest for witness who fails to appear  
   68.     Court may close proceeding to public  
   69.     Alternative arrangements for proceeding  
   70.     Special rules for cross-examination of protected witnesses  
   71.     Representation of respondent  
   72.     Representation of applicant  
   73.     Expert evidence about family violence  

           Division 3A--Assessment reports in proceedings in the Children's Court

   73A.    Children's Court may order assessment of respondent or affected family member  
   73B.    Notification of requirement to submit assessment report  
   73C.    Warning to be given to persons being interviewed  
   73D.    Disputed report  
   73E.    Content of assessment report  
   73F.    Secretary to forward report to Children's Court  
   73G.    Attendance at court of author of assessment report  
   73H.    Confidentiality of assessment reports  
   73I.    Court to consider any children before making final order  
   74.     Power of court to make final order  
   74A.    No final order if existing personal safety intervention order  
   75.     Power to make final order if affected family member has not consented to application or order—police applicants  
   76.     Associated final orders  
   77.     Court must make final order for a child if court makes final order for affected family member  
   77A.    Court must make final order for a child if court makes associated final order for affected family member or additional applicant  
   77B.    Protection of a child on court's own initiative—final order not made for affected family member or additional applicant  
   78.     Consent orders  

           Division 5--Conditions of family violence intervention orders

   79.     Definition  
   80.     Safety of affected person and children paramount in deciding conditions  
   81.     Conditions to be included in family violence intervention order  
   82.     Exclusion of respondent from residence  
   83.     Exclusion of child respondent from residence  
   84.     Court may ask Secretary for report for purposes of section 83  
   85.     Excluded person to provide new address  
   86.     Conditions about personal property  
   87.     Relationship with orders made by Family Court and other courts  
   88.     No effect on ownership rights  
   89.     Court to enquire as to whether any other relevant orders for child  
   90.     Variation of relevant Family Law Act order  
   91.     Decision about contact with child  
   92.     Conditions about arrangements for contact with child if not Family Law Act order  
   93.     Condition prohibiting contact with child  
   94.     Court to enquire about firearms and weapons  
   95.     Suspension or cancellation of firearms authority etc.  

           Division 6--Explanation of final order

   96.     Explanation of final order  
   96A.    Explanation of final order—child respondents  

           Division 7--Duration of final order

   97.     Court may specify period for which order in force  
   98.     Period for which order remains in force if respondent a child  
   99.     Duration of order  

           Division 8--Variation, revocation and extension of family violence intervention orders

   100.    Power of court to vary or revoke family violence intervention order  
   101.    Court may make interim order on application for variation of family violence intervention order  

           Division 1--applies to applications for variations, revocations or extensions of family violence intervention orders. See the definition of family violence intervention order in section 11.

   102.    Additional protection in varying or revoking orders  
   103.    Continuing protection of protected person who is a child  
   104.    Protection for children who have become family members since order made  
   105.    Further application for variation etc. of order in respect of child  
   106.    Power of court to extend final order  
   107.    Interim extension order  
   108.    Who may apply to vary, revoke or extend family violence intervention order  
   109.    Application made by respondent for variation or revocation of family violence intervention order  
   110.    Application made by police officer  
   111.    Consent required if applicant is not protected person, guardian, respondent or police officer  
   112.    Protected person's views to be heard separately in certain circumstances  
   113.    Persons on whom application must be served  

           Division 9--Appeals and rehearings

   114.    Who may appeal  
   115.    Court to which appeal must be made  
   116.    Notice of appeal  
   117.    Stay of relevant decision  
   118.    Appeals not to commence if certain persons object  
   118A.   Appellant's failure to appear  
   118B.   Effect of order reinstating appeal—stay and bail conditions  
   119.    Conduct of appeal  
   120.    No further appeal  
   121.    Application of certain Acts to appeals  
   122.    Rehearing of certain proceeding  

           Division 10--Contravention of family violence intervention order

   123.    Contravention of family violence intervention order  
   123A.   Contravention of order intending to cause harm or fear for safety  
   124.    Arrest for contravention of family violence intervention order  
   125.    Protected person not guilty as abettor  

           Division 11--Persistent contravention of notices and orders

   125A.   Persistent contravention of notices and orders  

           Division 12--Double jeopardy--recognised DVOs

   125B.   No double jeopardy—recognised DVOs  

   PART 5--COUNSELLING ORDERS

           Division 1--Preliminary

   126.    Definitions  
   127.    Object of Part  
   128.    Part applies only to adults  

           Division 2--Orders to assess eligibility for and to attend counselling

   129.    Order to assess eligibility for counselling  
   130.    Order to attend counselling  
   131.    Effect of appeal against final order  

           Division 3--Procedures relating to counselling orders

   132.    Notice of hearings  
   133.    Approval of counselling  
   134.    Person giving report may be required to attend hearing  
   135.    Disputed report  
   136.    Explanation of counselling orders  
   137.    Variation or revocation of counselling orders  
   138.    Service of counselling orders, eligibility report etc.  
   139.    Certificate of respondent's non attendance  
   140.    Confidentiality of eligibility interview and report  
   141.    Confidentiality of counselling  
   142.    Limited use of information by court  
   143.    Authorisation to collect health information  
   144.    Delegation  

   PART 5A--INFORMATION SHARING

           Division 1--Preliminary

   144A.   Definitions  
   144B.   Meaning of person of concern  
   144C.   Meaning of excluded information  
   144D.   Meaning of information sharing entity  
   144E.   Meaning of primary person  
   144F.   Meaning of CIP data custodian  
   144G.   Meaning of CIP requester  
   144H.   Objects of Part  
   144I.   Application of this Part to Courts  
   144J.   Principles  

           Division 2--Information sharing for family violence assessment purpose

   144K.   Application of Division to confidential information of certain persons  
   144KA.  Voluntary disclosure for family violence assessment purpose  
   144KB.  Request for information sharing for family violence assessment purpose  
   144KC.  Obligation to disclose for family violence assessment purpose  
   144KD.  Collection and use of confidential information for family violence assessment purpose  

           Division 3--Information sharing for family violence protection purpose

   144L.   Application of Division to confidential information of certain persons  
   144LA.  Voluntary disclosure for family violence protection purpose  
   144LB.  Request for information sharing for family violence protection purpose  
   144LC.  Obligation to disclose for family violence protection purpose  
   144LD.  Collection and use of confidential information for family violence protection purpose  

           Division 4--Information sharing with primary persons

   144M.   Voluntary disclosure to primary person  
   144MA.  Primary person not to disclose confidential information other than for reasons of safety  

           Division 5--Consent

   144N.   Consent of person of concern and certain other persons not required  
   144NA.  Consent of primary person who is an adult  
   144NB.  Consent of linked person  
   144NC.  Consent not required if primary person is a child  
   144ND.  Capacity to consent  

           Division 6--The Central Information Point

   144O.   Central Information Point  
   144OA.  CIP purpose  
   144OB.  Central Information Point may handle confidential information for CIP purpose  
   144OC.  CIP requests  
   144OD.  CIP requester may disclose information to Central Information Point  
   144OE.  CIP data custodian may disclose confidential information to Central Information Point  
   144OF.  CIP data custodian may disclose information to other CIP data custodians  
   144OG.  CIP data custodians and CIP requesters may disclose information to Central Information Point on own initiative  
   144OH.  References in certain provisions to CIP data custodians and CIP requesters  
   144OI.  Delegation  

           Division 7--Guidelines, protected disclosures and recording requirements

   144P.   Guidelines  
   144PA.  Disclosures made in good faith protected  
   144PB.  Information sharing entity and Central Information Point recording requirements  

           Division 8--Relationship of this Part with other Acts

   144Q.   Part does not affect handling of information permitted by other Acts  
   144QA.  Access to confidential information under privacy laws restricted where risk to safety from family violence  
   144QB.  Application of Privacy and Data Protection Act 2014 to certain information sharing entities  
   144QC.  Information sharing entity or Central Information Point authorised to share confidential information despite specified provisions  
   144QD.  Disclosure of confidential information is not breach of Judicial Proceedings Reports Act 1958  
   144QE.  Exemption from Freedom of Information Act 1982 for Central Information Point  

           Division 9--Offences

   144R.   Unauthorised use and disclosure of confidential information  
   144RA.  Intentional or reckless unauthorised use and disclosure of confidential information  

           Division 10--Review

   144S.   Review of operation of Part after 2 years of operation  
   144SA.  Review of operation of Part after 5 years of operation  

   PART 5B--INFORMATION SHARING RELATING TO SUPPORT AND SAFETY HUBS

           Division 1--Preliminary

   144SB.  Definition  
   144SC.  Meaning of authorised Hub entity  

           Division 2--Object of Part

   144SD.  Object of Part  

           Division 3--Information sharing

   144SE.  Authorised Hub entity may collect, use and disclose confidential information for a purpose connected with provision of Hub services  
   144SF.  Part does not affect handling of information permitted by other Acts  
   144SG.  Access to confidential information under privacy laws restricted where risks to safety  

   PART 6--JURISDICTION OF COURTS AND PROCEEDINGS

           Division 1--Jurisdiction of courts

   145.    Definitions  
   146.    Jurisdiction of courts if affected family member, protected person or respondent a child  
   147.    Jurisdiction of Children's Court to deal with related applications  
   147A.   Jurisdiction of Children's Court to deal with applications related to child protection proceedings  
   148.    Transfer of applications  
   149.    Jurisdiction to revoke, vary or extend orders  

           Division 2--Provisions about proceedings under this Act

   150.    Restriction on presence of children  
   151.    Adjournment to seek legal advice  
   152.    Applicant who is police officer may be represented by another police officer  
   153.    Certification  
   153A.   Offence to make false declaration of truth  
   154.    Costs  
   155.    Concurrent criminal proceedings  
   156.    Family violence intervention order against carer  

   PART 7--ENFORCEMENT POWERS

   157.    Entry and search of premises  
   158.    Surrender of firearms and weapons  
   159.    Power of police officer to search premises for firearms etc. without warrant  
   159A.   Applications for DVOs—additional requirements for direction or search without warrant  
   160.    Warrants to search premises and vehicles  
   161.    Announcement before entry  
   162.    Copy of the warrant to be given to occupier  
   163.    Seizure of firearms etc.  
   164.    Effect of surrender or seizure of firearm, weapon or other article if final order made against person  
   165.    Effect of surrender or seizure of firearm, weapon or other article if no final order etc.  

   PART 8--RESTRICTION ON PUBLICATION OF PROCEEDINGS

           Division 1--General restriction on publication

   166.    Restriction on publication of proceeding in Magistrates' Court  
   167.    Exception to restriction on publication  
   168.    Identifying particulars  
   169.    Court may allow publication of locality, particulars or picture  

           Division 2--Exception for publication by or with consent of adult victim

   169A.   Interpretation  
   169B.   Exception to restriction on publication by or with consent of adult victim  
   169C.   Subsequent publication  

           Division 3--Issuing jurisdiction restrictions on publication about recognised DVOs

   169D.   Meaning of issuing jurisdiction  
   169E.   Recognised DVOs—issuing jurisdiction restrictions not affected  

   PART 9--RELATIONSHIP WITH OTHER ACTS

   170.    Application of Magistrates' Court Act 1989 and rules  
   171.     Relationship with Firearms Act 1996 and Control of Weapons Act 1990  
   172.    Application of principles under Children, Youth and Families Act 2005 to decisions under this Act  
   173.    Family violence intervention orders prevail over child protection orders  
   174.    Notice to be given to Secretary to Department of Human Services  
   175.    Bail conditions prevail over child protection order  
   175AA.  Relationship between bail conditions and family violence safety notice  
   175AB.  Relationship between bail conditions and family violence intervention order  
   175A.   Relationship with certain orders under the Sentencing Act 1991  
   175AC.  Relationship between bail conditions and recognised DVO  
   176.    Relationship with Family Court orders  

   PART 9A--RELATIONSHIP WITH PERSONAL SAFETY INTERVENTION ORDERS ACT 2010

           Division 1--General

   176A.   Definitions  
   176B.   Concurrent applications may be heard together  
   176C.   Family violence intervention order, recognised DVO to prevail  

           Division 2--Certain applications under Personal Safety Intervention Orders Act 2010 to be heard under this Act where parties are family members

           Division 2--of Part 8 of the Personal Safety Intervention Orders Act 2010 provides for applications for family violence intervention orders to be heard under that Act as applications for personal safety intervention orders where the court determines that the parties are not family members.

   176D.   Application of Division  
   176E.   Court may determine parties to application for personal safety intervention order are family members  
   176F.   No further determination if determination made by County Court or Supreme Court  
   176G.   Effect of determination under section 176E(2)(b)—general  

           Division 8--of Part I of the Evidence (Miscellaneous Provisions) Act 1958 provides for confidentiality of mediation conferences conducted under that Division.

   176H.   Search warrants issued under Personal Safety Intervention Orders Act 2010  
   176I.   Firearms etc seized or surrendered under Personal Safety Intervention Orders Act 2010  
   176J.   Existing interim personal safety intervention order must be revoked  
   176K.   Determination made on application to vary existing interim personal safety intervention order  
   176L.   Determination made on application to revoke existing interim personal safety intervention order  
   176M.   Determination made when hearing application for final personal safety intervention order  
   176N.   Revocation of interim personal safety intervention order under this Division  
   176O.   Explanation of determination  

   PART 10--CORRESPONDING NEW ZEALAND ORDERS

   177.    Registration of corresponding New Zealand orders  
   178.    Notice to be given of registration of corresponding New Zealand orders  
   179.    Variation, extension or revocation by New Zealand Court has no effect  
   180.    Variation, extension or revocation of registered corresponding New Zealand order by Victorian Court  
   181.    Notice of proposed variation, extension or revocation of registered corresponding New Zealand order  
   182.    Notice to be given of variation, extension or revocation of registered corresponding New Zealand order  

   PART 11--FAMILY VIOLENCE RISK ASSESSMENT AND RISK MANAGEMENT FRAMEWORK

   188.    Definitions  
   189.    Minister may approve framework  
   190.    Obligation to align with approved framework  
   191.    Compliance with approved framework to form condition of contract or agreement  
   192.    Ministers to prepare annual report on approved framework  
   193.    Consolidated annual report to be tabled in Parliament  
   194.    Minister must review approved framework  
   195.    Review of operation of Part  
   196.    Rights and liabilities  

   PART 12--SERVICE OF DOCUMENTS

   201.    Service of orders  
   202.    Manner of service  
   202A.   Court may order alternative service  
   202B.   Presumption as to effective service by post, electronic communication  
   202C.   Substituted service  
   203.    Proof of service  
   204.    Inability to serve document  
   205.    Person may cause document to be served  
   206.    Certificate of service  
   207.    Disclosure of information by organisations  

   PART 13--MISCELLANEOUS

           Division 1--Jurisdiction of Supreme Court

   208.    Supreme Court—limitation of jurisdiction  

           Division 1A--Offences by bodies corporate

   208A.   Imputing conduct to bodies corporate  
   208B.   Criminal liability of officers of bodies corporate—accessorial liability  

           Division 2--Rule-making power

   209.    Rules of court and practice directions for Magistrates' Court  
   210.    Rules of court and practice directions for Children's Court  

           Division 3--Regulations

   210A.   Information sharing regulation making power  
   210B.   Framework regulation making power  
   211.    General regulation making power  

   PART 14--REPEAL, TRANSITIONAL AND VALIDATION PROVISIONS

           Division 1--Repeal

   212.    Repeal of Crimes (Family Violence) Act 1987  

           Division 2--Transitional provisions

   213.    Definitions  
   214.    References to repealed Act  
   215.    Intervention orders  
   216.    Interim intervention orders  
   217.    Counselling orders  
   218.    Applications  
   219.    Proceedings  
   220.    Interim intervention order  
   221.    Acts committed before commencement day relevant  
   222.    Protection for protected person applies to acts committed before commencement day  
   223.    Interstate and New Zealand orders  

           Division 3--Validation provision

   224.    Validation of certain interstate orders  

           Division 4--Statute Law Amendment (Evidence Consequential Provisions) Act 2009

   224A.   Transitional provision—Statute Law Amendment (Evidence Consequential Provisions) Act 2009  

           Division 5--Justice Legislation Amendment (Victims of Crime Assistance and Other Matters) Act 2010

   224B.   Transitional provision—Justice Legislation Amendment (Victims of Crime Assistance and Other Matters) Act 2010  

           Division 6--Personal Safety Intervention Orders Act 2010

   224C.   Transitional provisions—Personal Safety Intervention Orders Act 2010  

           Division 7--Justice Legislation (Family Violence and Other Matters) Act 2012

   224D.   Transitional provisions—Justice Legislation (Family Violence and Other Matters) Act 2012  

           Division 8--Children, Youth and Families Amendment Act 2013

   225.    Transitional provision—Children, Youth and Families Amendment Act 2013  

           Division 9--Family Violence Protection Amendment Act 2014

   226.    Transitional provisions—Family Violence Protection Amendment Act 2014  

           Division 10--National Domestic Violence Order Scheme Act 2016

   227.    Transitional provisions—National Domestic Violence Order Scheme Act 2016  

           Division 11--Family Violence Protection Amendment Act 2017

   228.    Definitions  
   228A.   Family violence intervention orders for protection of children  
   229.    Appeals  
   229A.   Explanations of orders  
   230.    Approval of counselling  
   230A.   Review of amendments to first mention date for family violence safety notices  
   231.    Alternative service  

           Division 12--Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018

   232.    Transitional provisions—Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018  

           Division 13--Justice Legislation Miscellaneous Amendment Act 2018

   233.    Transitional provision—Justice Legislation Miscellaneous Amendment Act 2018  

           Division 14--Police and Emergency Legislation Amendment Act 2020

   234.    Transitional provision—Police and Emergency Legislation Amendment Act 2020  
           SCHEDULE 1
           ENDNOTES