Under the Family Violence Protection Act 2008 (Vic), a party (police application, affected family member, and respondent) may apply to have an FV IVO revoked or varied.
If a respondent intends to make an application to vary or revoke an Intervention Order, the steps are more onerous.
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Respondent Application to Revoke or Vary an FV IVO
Division 8 of the Family Violence Protection Act (2008) Vic deals with extensions, variations, and revocations of Intervention Orders.
Section 109 of the FVPA, permits a respondent to apply for a variation to, or revocation of, an interim order, but this right is restrictive. A respondent must first seek leave of the Court to make their application, and the Court will only great leave if:
(a) there has been a change in circumstances since the family violence intervention order was made; and
(b) the change may justify a variation or revocation of the order; and
(c) in the case of an interim order, it is in the interests of justice that the application be determined immediately, rather than waiting for the hearing of the application for the final order.
Obviously, an application to vary/revoke which has the support of the affected family member will have much better prospects of success.
Where an application to vary or revoke is opposed, the Court will case manage the litigation over a series of court events: mention, directions hearing, and finally a hearing.
Often it is useful to engage in counselling, or other rehabilitation programs early, so that successful completion of such programs can be used as a basis for a proposed variation or revocation.
Application to Vary or Revoke Where Respondent Not Aware of The Case
Although rarely an option where police applications are involved (as a respondent will be served with a Family Safety Notice notifying them of the return date for an application for an intervention order), a respondent (usually in private applications), may apply to vary or revoke an interim FV IVO.
Section 109(2A) provides that a respondent must seek leave, and that:
Leave may be granted if:
In the interests of justice to grant leave having regard to the reasons as to why the respondent was not present
The application for variation or revocation is made within 21 days after the Interim Order was made. Note, an application to extend the time to apply for a variation is permitted under 109(2C) if there are exceptional circumstances
An alternative to a variation or revocation is an appeal, but the decision to appeal must be considered carefully
An appeal against the making of a Final Order for an FV IVO is provided for under Division 9 of the Act, with any appeal operating as a re-hearing and will ordinarily be heard in the County Court.
An appeal must be lodged within 30 days of the Final Order being made, and there is no ability to extend the time for an appeal (Carroll (a pseudonym) v Browne (a pseudonym) & County Court of Victoria [2018] VSC 253; Summers (a pseudonym )v McKenzie (a pseudonym) [2015] VCC 2015.
Appeals are conducted in the County Court and are conducted pursuant to the relevant practice note (PNCLD3 – 2019).
The only exceptions are those extraordinarily rare circumstances where an appeal is made to an order of the Chief Magistrate or Children’s Court President, if at the time the Chief Magistrate or the President of the Children’s Court was a dual commission holder, in which case the appeal goes to the Trial Division of the Supreme Court: s.115
Importantly, the lodgement of an appeal does not stay the operation of the Intervention Order, unless an application is made by a respondent, under the Act to stay the decision or a particular aspect of the decision.
So, a Final IVO will ordinarily continue in the same terms as Ordered even though an appeal against the decision has been lodged.
A proper assessment obviously needs to be made as to the merit of pursuing an appeal, as there is no further right of appeal from the Count Court.
For a cautionary tale on this point see the case of OP & XY & County Court of Victoria [2020] VSC 754. In that case at the end of a final hearing involving cross-applications, by two police officers mutual 2-year Intervention Orders were made. OP appealed and ended up with 18 years on appeal.