41. FV Orders — Which Order / Regime? (Vic)¶
Scope and currency
Cheat sheet · Family Violence Protection Act 2008 (Vic); Personal Safety Intervention Orders Act 2010 (Vic); National Domestic Violence Order Scheme Act 2016
Starting point: an FVIO is a court order protecting a person from family violence. Which instrument applies turns first on the relationship, then on urgency and stage. Family violence may be made out even if the behaviour would not be a criminal offence (s 5(3)).
The decision sequence¶
GATE 1 Does the FVPA apply at all?
Is the affected person a family member of the respondent (s 8, defined ss 9–10) and is the conduct family violence (s 5)? → Both yes: the FVPA / FVIO regime applies. → Not a family member: use the Personal Safety Intervention Orders Act 2010 (PSIO). A FVIO or recognised DVO prevails over a PSIO to the extent of any inconsistency.
GATE 2 Need immediate protection before court?
Is urgent protection required when the court is closed / normal procedures are unavailable, and the respondent is an adult? → Yes: police issue a family violence safety notice (FVSN). It lasts until the court refuses an FVIO at the first mention, or (if an order is made) until that order is served. Not available against a child respondent. → No: proceed to the court order pathway (Gate 3).
GATE 3 Protection pending the final decision?
Is short-term protection necessary before the application is finally decided? → Yes: interim order (s 53): necessary to ensure the AFM's safety, preserve their property, or protect a child subjected to FV; or by consent/non-opposition. Where an FVSN is in force there is a presumption an interim order is made (s 53(1)©). The court may make an interim order on its own motion, including in bail or criminal proceedings (ss 60B–60E).
GATE 4 Final order?
Is the court satisfied, on the balance of probabilities, that the respondent has committed family violence against the AFM and is likely to do so again (s 74(1)) — or do all parties consent / not oppose (s 78)? → Yes: final order (s 74). A respondent may consent without admissions (s 78(1)(b)). → Child respondent: even on consent the court must be satisfied grounds exist under s 74 or s 76 (s 78(2)); the order cannot exceed 12 months (s 98). → Protecting an associate: associated orders are available only on a final order (s 76) — no interim associated order. For urgent associate protection, apply under the PSIO Act.
The instruments at a glance¶
| Instrument | Who makes it | Test / threshold | Duration | Source |
|---|---|---|---|---|
| FVSN | Police (adult respondent) | Immediate protection; court closed / unavailable | Until first mention refusal or order served | FVPA |
| Interim FVIO | Court | Necessary for safety / property / child; or consent; FVSN in force → presumption | Until final hearing | s 53 |
| Final FVIO | Court | BoP: FV committed & likely again; or consent/non-opposition (s 78) | As ordered (child: ≤12 months, s 98) | s 74 |
| Associated order | Court (final only) | Associate committed/subjected to FV & likely again | With/independent of final order | s 76 |
| PSIO | Court | Non-family-member relationships | As ordered | PSIO Act 2010 |
| Recognised DVO | Interstate / NZ | Recognised & enforceable as a Victorian order | Per originating order | Nat. DVO Scheme Act |
What drives Gate 1 — "family member" (s 8)¶
A family member is: a current or former spouse or domestic partner (s 9); a person (and their child) who has/had an intimate personal relationship (not necessarily sexual); a relative or former relative (s 10, including under Aboriginal or Torres Strait Islander tradition or contemporary social practice); a child who normally/regularly resides or resided with the person; or a person regarded as "like a family member" where reasonable in the circumstances (s 8(3) — e.g. a carer; not mere co-tenants).
— "family violence" (s 5): behaviour towards a family member that is physically/sexually abusive, emotionally/psychologically abusive, economically abusive, threatening, coercive, or otherwise controlling or dominating so as to cause fear for safety or wellbeing; or behaviour causing a child to hear, witness or be exposed to its effects. Includes (s 5(2)) assault, sexual assault, property damage, deprivation of liberty, and harming/threatening an animal to control the family member. Conduct "towards" a person can include ascertaining their address (YY v ZZ & Anor [2013] VSC 743).
Currency watch¶
• 16 November 2017 — Family Violence Protection Amendment Act 2017 extended FVIO jurisdiction to the Koori Court Division of the Magistrates' and County Courts in certain circumstances.
• While the Family Violence Protection Amendment Act 2017 did officially commence those provisions on 16 November 2017 to create the statutory power, the Koori Court cannot actually hear FVIO contraventions unless the specific court venue is published in the Government Gazette for that purpose.
• It is not a blanket, state-wide jurisdiction. It was first gazetted for the Mildura Koori Court (both Magistrates' and County Court divisions) in 2019 to operate as a pilot program. Pilot program with a 12-month trial period (running from May 2019 to May 2020) to test the framework and safeguards. Because that trial concluded, the specific gazettal enabling Mildura's jurisdiction is no longer active.
• 25 November 2017 — National Domestic Violence Order Scheme Act 2016 commenced; interstate/NZ DVOs recognised and enforceable in Victoria.