42. FVIO Order Pathway (Vic)¶
Scope and currency
Cheat sheet · Family Violence Protection Act 2008 (Vic) · application → interim → final → vary / appeal / rehear
Read the steps in sequence. Jurisdiction sits with the Magistrates' and Children's Courts (and, since 29 March 2018, the Koori Court Division in certain circumstances). Non-compliance with the court rules is an irregularity, not a nullity — the court may amend or dispense with the rules, subject to the FVPA.
The procedural sequence¶
STEP 1 Commence
What starts the process? → One of: an FVSN; an application & summons; an application & warrant; or a court-made interim order on its own motion (taken to be an application & summons where police are the applicant). → Where / when: at a Magistrates' or Children's Court in business hours, or after hours by police.
STEP 2 Service (s 48 / 205)
The application must be served on the respondent as soon as practicable. If the AFM is not the applicant, the registrar must also serve the AFM (a child AFM and their parent/guardian must both be served). Variation, revocation or extension must be served on each party and parent/guardian (s 113). The court may order alternative service (s 202A).
STEP 3 Mention date — possible outcomes
→ Interim: extend an existing interim order to final hearing (s 60); or make one by consent (after the mandatory checklist) or on s 53 grounds; FVSN in force → presumption (s 53(1)©). → Final in the respondent's absence: respondent served + applicant present/instructing + s 61/s 74 test satisfied (BoP: FV committed & likely again). → Final by consent: both parties present/instructing + mandatory-considerations checklist addressed. Respondent may consent without admissions (s 78(1)(b)). → Child respondent: court must still be satisfied of grounds under s 74 or s 76 (s 78); order ≤ 12 months (s 98).
STEP 4 Directions hearing (optional — not mandatory)
Identifies issues and witnesses and manages protected witnesses, special needs and interpreters. Personal cross-examination of a protected witness is prohibited (s 70(3)), subject to narrow consent exceptions. Seek a s 71 order if acting for the respondent (VLA to conduct cross-examination), or a s 72 order if acting for an unrepresented applicant (other than police) — VLA representation.
STEP 5 Final hearing
The court may inform itself as it thinks fit, subject to exceptions (s 65) — the system is inquisitorial as well as adversarial. Limited rules of evidence apply (s 65(2): Evidence Act 2008 ss 13, 30, 31, 41 and Pt 3.10; Evidence (Miscellaneous Provisions) Act 1958 Div 2A Pt II on confidential communications). Broad power to exclude or limit evidence (s 65(3)). Apply the s 74 test. If a final order is made for an AFM, the court must consider whether a child has been subjected to FV and make protective orders (s 77).
STEP 6 After the final order
→ Vary / extend: court has regard to the s 101 factors and the s 102 checks (including any Family Law Act orders — consider s 68R); ss 100, 106, 107. → Counselling order: a relevant court only (incl. Specialist Family Violence Court Division), adults only; eligibility assessment (s 129) then order (s 130); separate from the FVIO and survives its variation/revocation. → Associated order: available only on a final order (s 76).
STEP 7 Challenge the order
→ Appeal (s 114): by way of re-hearing (s 119); fresh evidence is allowed (AAA v County Court of Victoria & Ors [2023] VSC 13). To the County Court — except a decision of the President of the Children's Court, which goes to the Trial Division of the Supreme Court (s 115). No further appeal beyond that (s 120; Gao v Zhang [2002] VSCA 19). → Re-hearing (s 122): on the respondent's application where the application was not personally served / not brought to attention after substituted service, or there are exceptional circumstances and a rehearing is fair and just. Operates de novo — the applicant must prove the s 74 test again.
Challenge routes compared¶
| Route | Who | Trigger | Nature | Forum |
|---|---|---|---|---|
| Appeal (s 114) | Any party | Against an order or refusal to make one | Re-hearing; fresh evidence allowed | County Court (or SC Trial Division for President CC) |
| Re-hearing (s 122) | Respondent | Not served / not brought to attention; or exceptional circumstances, fair & just | De novo; applicant re-proves s 74 | Court that made the final order |
Currency watch¶
• 29 March 2018 — Koori Court Division jurisdiction over FVIO-related hearings in certain circumstances (Family Violence Protection Amendment Act 2017).
• AAA v County Court of Victoria [2023] VSC 13 — fresh evidence is admissible on a s 114 appeal.