Magistrates' Court (Family Violence Protection) Rules 2018

Version No. 002

Magistrates' Court (Family Violence Protection) Rules 2018

S.R. No. 182/2018

Version incorporating amendments as at
12 July 2019

TABLE OF PROVISIONS

Rule Page

Order 1—Preliminary 1

Part 1—General 1

1.01 Object 1

1.02 Authorising provisions 2

1.03 Commencement 2

1.04 Revocations 2

Part 2—Interpretation 2

1.05 Definitions 2

Part 3—Application of Rules 3

1.07 Application 3

Part 4—Miscellaneous 4

1.09 Legal representation 4

1.10 Filing of documents 5

1.11 Seal of the Court 5

Order 2—Non-compliance with the Rules 6

2.01 Effect of non-compliance 6

2.02 Dispensing with compliance 6

Order 3—Time and documents 7

3.01 Court may fix time 7

3.02 Content and form of documents 7

3.03 Registrar refusing to accept documents 7

3.04 Scandalous matter 7

Order 4—Process in the Court 8

Part 1—Police protection before Court 8

4.01 Application to extend direction or detention 8

4.02 Process for filing family violence safety notices 9

Part 2—Applications for family violence intervention orders 9

4.03 Application for a family violence intervention order 9

4.04 Application for associated final order 11

4.05 Application for variation, revocation or extension of a family violence intervention order 12

4.06 Form of consent 14

Part 3—Miscellaneous 15

4.07 Request for further and better particulars of application 15

4.08 Withdrawal of applications 15

Order 5—Service and related matters 16

Part 1—Giving of documents by Court 16

5.01 Process if Court required to give documents to a person 16

Part 2—Matters relating to service 17

5.02 Certificate of service 17

5.03 Inability to serve 17

5.04 Certificates may be filed by facsimile or electronic communication 18

Order 6—Stay of proceeding 19

6.01 Stay of proceeding 19

6.02 Striking out proceeding 19

Order 7—Subpoenas 20

7.01 Attendance by subpoena 20

7.02 Address of subpoena 20

7.03 Service 20

7.04 Conduct money 21

7.05 Setting aside 21

7.06 Production before date of attendance 21

Order 8—Affidavits 22

8.01 Form of affidavit 22

8.02 Affidavit by illiterate, blind or incapacitated person 22

8.03 Content of affidavit 23

8.04 Affidavit by 2 or more deponents 23

8.05 Alterations 23

8.06 Annexures and exhibits 23

8.07 Irregularity 24

8.08 Filing and service of affidavits 24

8.09 Service of affidavits if party is unrepresented 24

8.10 Affidavit sworn before party 25

Order 9—Expert evidence 26

9.01 Statement or report of expert to be filed 26

9.02 Service of statement or report 27

9.03 Service of statement or report on unrepresented party 27

9.04 Putting statement or report filed by other party in evidence 27

Order 10—Hearings 28

10.01 Order of hearing 28

10.02 No addresses 28

10.03 Absence of party 28

10.04 Alternative arrangements for giving evidence 28

Order 11—Orders and other matters 30

11.01 Certified extracts 30

11.02 Form of written explanation of interim family violence order 30

11.03 Form of written explanation of final family violence order 30

Order 12—Venue and transfer of proceedings 31

12.01 Venue of Court 31

12.02 Place of hearing of application 31

Order 13—Rehearings 33

13.01 Application for rehearing 33

13.02 Form of application 33

13.03 Rehearing date 33

Order 14—Appeals 34

14.01 Form of notice of appeal 34

14.02 Stay of relevant decision 34

Order 15—Miscellaneous 35

15.01 Risk assessments 35

15.03 General power of amendment 35

15.04 Directions 35

Order 16—Procedure under the Vexatious Proceedings Act 2014 36

Part 1—Interpretation 36

16.01 Definitions 36

Part 2—Applications and notices 36

16.02 Applications for leave to apply for extended litigation restraint orders that relate to intervention order legislation 36

16.03 Applications for extended litigation restraint orders that relate to intervention order legislation 36

16.04 Applications for acting in concert orders—intervention order legislation 37

16.05 Application for leave to proceed under extended litigation restraint order that relates to intervention order legislation 37

16.06 Application for leave to proceed under general litigation restraint order 37

16.07 Notice of applications 38

16.08 Application for leave to apply for variation or revocation of extended litigation restraint order that relates to intervention order legislation 38

16.09 Application to vary or revoke extended litigation restraint order that relates to intervention order legislation 38

16.10 Notice of application to vary or revoke litigation restraint order 38

Part 3—Provisions applying to applications 39

16.11 Application of Part 39

16.12 Service of applications 39

16.13 Day for hearing 40

16.14 Adjournment 40

16.15 Absence of party to application 41

Form 1—Subpoena 42

Form 1A—Explanation of interim family violence intervention order 44

Form 1B—Explanation of final family violence intervention order 48

Form 2—Application for rehearing 52

Form 3—Notice of appeal 54

Form 4—Application for leave to apply for extended litigation restraint order 56

Form 5—Application for extended litigation restraint order 58

Form 6—Application for acting in concert order 60

Form 7—Application for leave to continue proceeding by person subject to extended litigation restraint order 62

Form 8—Application for leave to commence proceeding by person subject to extended litigation restraint order 64

Form 9—Application for leave to continue proceeding by person subject to general litigation restraint order 66

Form 10—Application for leave to commence proceeding by person subject to general litigation restraint order 68

Form 11—Notice of application for leave to proceed 70

Form 12—Application for leave to apply to vary or revoke extended litigation restraint order 71

Form 13—Application to vary or revoke extended litigation restraint order 73

Form 14—Notice of application to vary or revoke extended litigation restraint order 75

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Endnotes 77

1 General information 77

2 Table of Amendments 79

3 Amendments Not in Operation 80

4 Explanatory details 81

Version No. 002

Magistrates' Court (Family Violence Protection) Rules 2018

S.R. No. 182/2018

Version incorporating amendments as at
12 July 2019

The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules:

Order 1—Preliminary

Introductory Note

These Rules are Rules of the Magistrates' Court as to proceedings under the Family Violence Protection Act 2008.

Related Rules

These Rules are in many respects uniform with the Magistrates' Court (Personal Safety Intervention Orders) Rules 2011[1] ("the Personal Safety Intervention Orders Rules"). Many of the Orders and Rules are drafted in the same terms as the Personal Safety Intervention Orders Rules, except so far as minor variations are required to accord with the Family Violence Protection Act 2008.

If the Personal Safety Intervention Orders Rules include an Order or a Rule that is not included in these Rules there is a gap in the numbering of these Rules in order to maintain consistent numbering for the other Orders and Rules.

Part 1—General

1.01 Object

The object of these Rules is to make rules of procedure for proceedings in the Magistrates' Court of Victoria under the Family Violence Protection Act 2008.

1.02 Authorising provisions

These Rules are made under section 209 of the Family Violence Protection Act 2008, and under section 16(1D) and (1E) of the Magistrates' Court Act 1989, and all other enabling powers.

1.03 Commencement

These Rules come into operation on 3 December 2018.

1.04 Revocations

The following Rules are revoked—

(a) the Magistrates' Court (Family Violence Protection) Rules 2008[2];

(b) the Magistrates' Court (Family Violence Protection Rules) (Amendment No. 1) Rules 2011[3];

(c) the Magistrates' Court (Vexatious Proceedings Amendments) Rules 2014[4];

(d) the Magistrates' Court (Family Violence Protection) Amendment Rules 2017[5];

(e) the Magistrates' Court (Family Violence Protection) Amendment Rules 2018[6].

Part 2—Interpretation

1.05 Definitions

In these Rules, unless the context or subject matter otherwise requires—

barrister has the same meaning as it has in the Legal Profession Uniform Law (Victoria);

proceeding, unless the contrary intention appears, means—

(a) any matter in the Court commenced by application under the Family Violence Protection Act 2008; or

(b) any matter in the Court—

(i) that was commenced by application under the Personal Safety Intervention Orders Act 2010; and

(ii) in respect of which a Court has made a determination under section 176E(2)(b) of the Family Violence Protection Act 2008;

risk assessment means a summary relating to an affected family member's or a protected person's risk of family violence;

solicitor has the same meaning as it has in the Legal Profession Uniform Law (Victoria), and includes an incorporated legal practice as defined in that Law;

the Act means the Family Violence Protection Act 2008.

Part 3—Application of Rules

1.07 Application

(1) These Rules apply to—

(a) every proceeding commenced under the Act in the Court on or after 3 December 2018, other than a proceeding in respect of which a determination has been made under section 136(2)(b) of the Personal Safety Intervention Orders Act 2010; and

(b) every proceeding commenced under the Personal Safety Intervention Orders Act 2010 in respect of which a determination has been made under section 176E(2)(b) of the Act.

(2) These Rules apply, so far as applicable and with any necessary modification, to every appeal commenced under Division 9 of Part 4 of the Act on or after 3 December 2018.

Note

There is currently no Rule 1.06 or 1.08.

Part 4—Miscellaneous

1.09 Legal representation

(1) Subject to the Act, a party may appear in person or with legal representation.

(2) If a party obtains legal representation—

(a) the representative must as soon as practicable notify the Court that he or she represents that party; and

(b) the representative must inform the Court as soon as practicable if he or she ceases to represent the party.

(3) A notification to the Court under subrule (2)(a) must—

(a) specify whether the legal representative is a solicitor or a barrister; and

(b) provide the legal representative's address, telephone number, fax number and email address.

1.10 Filing of documents

Except where otherwise provided by these Rules or unless the Court otherwise orders, a document is filed by being lodged with the registrar in the office of the Court at the proper venue of the Court.

Note

Proper venue is defined in section 3(1) of the Magistrates' Court Act 1989.

1.11 Seal of the Court

(1) The principal registrar and every registrar must each have in the registrar's custody a stamp in a design that is as near as practicable the same as the design of the seal of the Court with the addition of, in the case of—

(a) the principal registrar, the words "Principal Registrar"; and

(b) a registrar, the word "Registrar".

(2) Marking a document or a copy of a document with a stamp referred to in subrule (1) is sufficient compliance with any requirements of these Rules or an order of the Court that the document or copy be sealed with the seal of the Court.

Order 2—Non-compliance with the Rules

2.01 Effect of non-compliance

(1) A failure to comply with these Rules is an irregularity and does not render a proceeding or a step taken, or any document or order therein, a nullity.

(2) If there has been a failure to comply with these Rules, the Court may exercise its powers under these Rules to allow amendments and to make orders dealing with the proceeding generally.

2.02 Dispensing with compliance

Subject to the Act, the Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.

Order 3—Time and documents

3.01 Court may fix time

If no time is fixed by the Act or these Rules for doing any act in a proceeding, the Court may fix a time.

3.02 Content and form of documents

(1) The Court may require any document in a proceeding to be prepared in any manner it thinks fit.

(2) If a document for use in the Court is not prepared in accordance with these Rules or any order of the Court—

(a) the registrar may refuse to accept it for filing without the direction of the Court; or

(b) the Court may order that the party responsible is not entitled to rely on it in any manner in the proceeding until a document which is properly prepared is filed.

3.03 Registrar refusing to accept documents

(1) A registrar may refuse to accept a document if the registrar considers that the form or contents of the document show that the document, if accepted, would be an abuse of the process of the Court.

(2) The Court may direct the registrar to accept a document for filing.

3.04 Scandalous matter

If a document for use in the Court contains scandalous, irrelevant or otherwise oppressive matter, the Court may order—

(a) that the offending matter be deleted; or

(b) if the document has been filed, that it be taken off the file.

Order 4—Process in the Court

Part 1—Police protection before Court

4.01 Application to extend direction or detention

For the purposes of an application under section 19 or 20 of the Act, the following particulars are prescribed—

(a) the name, rank, number and station of the police officer making the application;

(b) the name, date of birth and gender of the person who has been directed or detained;

(c) the name, rank, number and station of the police officer who issued the direction;

(d) the time, date and place that the direction was issued;

(e) the grounds for issuing the direction;

(f) if the person has been detained—

(i) whether the person refused or failed to comply with the direction; and

(ii) the time and date that the person was apprehended and detained;

(g) the location of the person who has been directed or detained;

(h) the time and date of making the application;

(i) the duration of the direction or detention at the time of making the application;

(j) the proposed period of the extension;

(k) the grounds for making the application.

4.02 Process for filing family violence safety notices

(1) For the purposes of section 34(c) of the Act, a copy of the form or safety notice form (the original form) must be filed with the Court as soon as practicable.

(2) The station of the police officer who made the application must retain the original form for 28 days after filing it with the Court.

Note

Rule 12.01(3) requires a family violence safety notice to be filed by facsimile transmission or other electronic communication if filed after business hours.

Part 2—Applications for family violence intervention orders

4.03 Application for a family violence intervention order

(1) For the purposes of an application for a family violence intervention order under section 43 or 44 of the Act, the following information is prescribed—

(a) the name of the applicant;

(b) the capacity in which the applicant applies;

(c) the name and date of birth of each affected family member;

(d) if the applicant is not the affected family member or a police officer—

(i) whether the affected family member consents to the making of the application; or

(ii) if the affected family member is a child, whether a parent of the child consents to the making of the application; or

(iii) if the affected family member has a guardian, whether the guardian consents to the making of the application;

(e) whether the applicant requires leave of the Court to make the application;

(f) the name, date of birth and address of the respondent;

(g) the relationship between the respondent and the affected family member;

(h) the reasons for seeking the order;

(i) the nature of the family violence alleged;

(j) the conditions on the order sought;

(k) whether a warrant is sought for the arrest of the respondent;

(l) details of any relevant Family Law Act order or child protection order, or any current application for a relevant Family Law Act order or child protection order;

(m) details of any previous application or order made, or family violence safety notice issued, under the Act;

(n) whether the respondent holds—

(i) a firearms authority; or

(ii) a weapons approval; or

(iii) a weapons exemption;

(o) whether an affected family member or the respondent has a disability;

(p) whether an affected family member or the respondent is of Aboriginal or Torres Strait Islander descent.

(2) If the applicant seeks a warrant for the respondent's arrest, the application must set out the reasons why a warrant is sought.

4.04 Application for associated final order

(1) An application for an associated final order under section 76 of the Act must include the following—

(a) the name of the applicant;

(b) the capacity in which the applicant applies;

(c) the names of the parties to the application for the original family violence intervention order, or the original order (as the case requires);

(d) the court reference number for the original application, or the date of the final order (as the case requires);

(e) the reasons for seeking the order;

(f) the conditions of the order sought;

(g) details of any relevant Family Law Act order or child protection order, or any current application for a relevant Family Law Act order or child protection order.

(2) If the application is for an associated final order against an additional respondent, the application must also—

(a) give the name, date of birth and address of the additional respondent; and

(b) set out how the additional respondent is an associate of the respondent; and

(c) if the applicant is not the protected person or a police officer, state—

(i) whether the protected person consents to the making of the application; or

(ii) if the protected person is a child, whether a parent of the child consents to the making of the application; or

(iii) if the protected person has a guardian, whether the guardian consents to the making of the application.

(3) If the application is for an associated final order to protect an additional applicant, the application must also—

(a) state the name and date of birth of each additional applicant; and

(b) set out how each additional applicant is an associate of the protected person; and

(c) if the applicant for the associated final order is not the additional applicant or a police officer—

(i) whether the additional applicant consents to the making of the application; or

(ii) if the additional applicant is a child, whether a parent of the child consents to the making of the application; or

(iii) if the additional applicant has a guardian, whether the guardian consents to the making of the application.

4.05 Application for variation, revocation or extension of a family violence intervention order

(1) For the purposes of sections 100 and 106 of the Act, an application for a variation, revocation or extension of a family violence intervention order must include the following particulars—

(a) the names of the parties to the proceeding in which the order was made;

(b) the name of the applicant for the variation, revocation or extension;

(c) the capacity in which the applicant applies;

(d) if the applicant is not the protected person or a police officer—

(i) whether the protected person consents to the making of the application; or

(ii) if the protected person is a child, whether a parent of the child consents to the making of the application; or

(iii) if the protected person has a guardian, whether the guardian consents to the making of the application;

(e) whether the applicant requires leave of the Court to make the application;

(f) the date of making the family violence intervention order;

(g) whether any other persons have become family members of the respondent since the family violence intervention order was made;

(h) the reasons for seeking a variation, revocation or extension;

(i) details of any relevant Family Law Act order or child protection order, or any current application for a relevant Family Law Act order or child protection order;

(j) if the application is for a variation, the conditions of the variation sought;

(k) if the application is for an extension, the duration of the extension sought.

(2) If the respondent applies for the variation or revocation of the family violence intervention order, the application must also set out any change in circumstances since the family violence intervention order was made.

4.06 Form of consent

(1) This Rule applies if a person—

(a) is required under section 45 or 75 of the Act to give written consent to the making of an application for a family violence intervention order; or

(b) is required under section 108 of the Act to give written consent to the making of an application to vary, revoke or extend a family violence intervention order.

(2) The consent must include the following particulars—

(a) the name, address, date of birth, occupation and gender of the person who will make the application;

(b) the name, address, date of birth, occupation and gender of the person providing the consent;

(c) if the person providing the consent is not the affected family member or protected person, that person's relationship to the affected family member or protected person;

(d) a description of the application.

(3) A consent under subrule (2) must be filed with the Court.

Part 3—Miscellaneous

4.07 Request for further and better particulars of application

(1) A party may only seek further and better particulars of an application with leave of the Court.

(2) If the Court decides to grant leave, the Court—

(a) must fix a time for the further and better particulars to be provided; and

(b) may give directions it considers appropriate for seeking and providing particulars, including—

(i) limiting the particulars that may be sought; and

(ii) directing how particulars are to be provided.

Example

The Court may direct that a party provide particulars in the form of a letter, or by affidavit.

4.08 Withdrawal of applications

(1) An application under the Act may be withdrawn only with the leave of the Court.

(2) A party seeking to withdraw an application must—

(a) file a written notice of withdrawal, to be served on the respondent by the registrar; or

(b) if the person attends court, make an oral application to the Court.

Order 5—Service and related matters

Part 1—Giving of documents by Court

5.01 Process if Court required to give documents to a person

Subject to section 201 of the Act or unless the Court otherwise orders or directs, if under the Act or these Rules, the Court is required to give any written notice or other document to any person, the Court may do so—

(a) by handing the document to the person; or

(b) by leaving the document at the address of the person; or

(c) by posting the document to the person at that person's address; or

(d) if a person has a facility for the reception of documents by facsimile transmission, by transmitting the document to that facility; or

(e) if the person is a respondent who has provided an email address under section 85(1) of the Act, by sending the document to that email address; or

Note

Section 85 of the Act allows a respondent who has been excluded from a residence to give an email address as an address for service. This only applies to documents not requiring personal service.

(f) if any other party has provided an email address, by sending the document to that email address.

Note

See also Part 12 of the Act, which deals with service.

Part 2—Matters relating to service

5.02 Certificate of service

(1) For the purposes of section 203 of the Act, a certificate of service must—

(a) include a statement about the date, time and place the document was served; and

(b) include a statement about the manner of service; and

(c) specify each document served; and

(d) indicate whether the certificate has been made on oath, by affidavit or is certified.

(2) A certificate of service must be filed as soon as practicable after service of the document to which it relates.

5.03 Inability to serve

(1) For the purposes of section 204 of the Act, the certificate must—

(a) be made on oath or by affidavit, or certified; and

(b) include the following particulars—

(i) if the person completing the certificate is a police officer, the police officer's name, rank and station;

(ii) if the person completing the certificate is an appropriate registrar, the appropriate registrar's name and the location of the court;

(iii) the reasons it has not been possible to serve the document, including details of attempts to locate or serve the person;

(iv) the means that the person completing the certificate believes could be used to bring the document to be served to the person's attention, and the reasons for that belief; and

(c) specify each document that was to be served.

(2) For the purposes of subrule (1)(a), the certificate may be certified only if it is completed by a police officer or an appropriate registrar.

5.04 Certificates may be filed by facsimile or electronic communication

A certificate completed under Rule 5.02 or 5.03 may be filed with the registrar by facsimile transmission or other electronic communication.

Order 6—Stay of proceeding

6.01 Stay of proceeding

If a proceeding is scandalous, frivolous or vexatious or is otherwise an abuse of the process of the Court, the Court may, on the application of a respondent, stay the proceeding.

6.02 Striking out proceeding

The Court may order that the whole or part of the application be struck out or amended if a proceeding—

(a) is scandalous, frivolous or vexatious; or

(b) may prejudice, embarrass or delay the fair hearing of the proceeding; or

(c) is otherwise an abuse of the process of the Court.

Order 7—Subpoenas

7.01 Attendance by subpoena

(1) A party may by subpoena require a person to attend at the hearing of the proceeding for the purpose of giving evidence or of producing any document or thing or for both purposes.

(2) A subpoena must be in accordance with Form 1.

(3) If under the Act a party requires leave of the Court to require a person to attend, the subpoena must—

(a) specify that leave has been granted; and

(b) be accompanied by a copy of the order, or extract of the order, granting that leave.

(4) An order by subpoena for the attendance of a person in a proceeding is taken to be made on the signing of the subpoena by a registrar.

7.02 Address of subpoena

(1) A subpoena requiring a person to attend for the purpose of giving evidence may be addressed to any number of persons.

(2) A subpoena requiring the production of a document or thing must be addressed to one person, except in the case of a partnership where all the members of a firm may be addressed in the subpoena.

7.03 Service

(1) A subpoena must be served personally on the person to whom it is addressed.

(2) Despite subrule (1), if the subpoena is addressed to a corporation, service may be effected by serving the subpoena personally on one of the following persons—

(a) the mayor, chairman, president or other head officer of the corporation;

(b) the town clerk, clerk, treasurer, manager, secretary or other similar officer of the corporation.

7.04 Conduct money

A person to whom a subpoena is addressed is excused from complying with the subpoena unless conduct money, sufficient to meet the person's reasonable expenses of complying, is given or tendered to that person at—

(a) the time of service of the subpoena; or

(b) a reasonable time before the day the witness is required to attend in answer to the subpoena.

7.05 Setting aside

The Court may set aside a subpoena either wholly or in part.

7.06 Production before date of attendance

(1) If a subpoena requires production of a document or thing before the Court or an officer of the Court, the person to whom the subpoena is addressed may instead produce the document or thing to the registrar by hand or by post, unless the Court otherwise orders.

(2) A document or thing produced by hand or by post must be received by the registrar not later than 2 days before the day that the subpoena requires the document or thing to be produced.

(3) This Rule does not apply to so much of a subpoena as requires a person to attend for the purpose of giving evidence.

Order 8—Affidavits

8.01 Form of affidavit

(1) An affidavit must be made in the first person.

(2) An affidavit must state the place of residence of the deponent and the deponent's occupation or, if the deponent has none, the deponent's description.

(3) Despite subrule (2), an affidavit does not have to state the deponent's place of residence if the deponent believes that it would jeopardise the deponent's safety to do so.

(4) An affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject.

(5) Every affidavit must be signed by the deponent, except as provided by Rule 8.02(1), and the jurat must be completed and signed by the person before whom it is sworn or affirmed.

(6) Each page of an affidavit must be signed by the person before whom it is sworn or affirmed.

(7) The first page of an affidavit must be headed immediately beneath the title of the proceeding with the name of the deponent and the date of swearing or affirmation.

(8) An affidavit must on the outside identify the party on whose behalf it is filed and state the name of the deponent and the date of swearing or affirmation.

8.02 Affidavit by illiterate, blind or incapacitated person

(1) If it appears to the person before whom an affidavit is sworn that the deponent is illiterate, blind, cognitively impaired or physically incapacitated, the person must certify in or below the jurat that—

(a) the person read the affidavit in the deponent's presence to the deponent; and

(b) the deponent seemed to the person to understand it.

(2) If an affidavit is made by an illiterate, blind, cognitively impaired or physically incapacitated deponent and a certificate in accordance with subrule (1) does not appear on the affidavit, it may not be used in evidence unless the Court is satisfied that the affidavit was read to the deponent.

8.03 Content of affidavit

In an application in a proceeding an affidavit may contain a statement of fact based on information and belief if the grounds are set out in the affidavit.

8.04 Affidavit by 2 or more deponents

If an affidavit is made by 2 or more deponents, the names of the persons making the affidavit must be inserted in the jurat, except that, if the affidavit is sworn by both or all the deponents at one time before the same person, it is sufficient to state that it is sworn by "each of the abovenamed" deponents.

8.05 Alterations

Any interlineation, erasure or other alteration in the jurat or body of an affidavit must be initialled by the person before whom it is sworn.

8.06 Annexures and exhibits

(1) A document referred to in an affidavit must not be annexed to the affidavit but may be referred to as an exhibit.

(2) An exhibit to an affidavit must be identified by a separate certificate annexed to it bearing the same title as the affidavit and signed by the person before whom the affidavit is sworn.

8.07 Irregularity

Despite any irregularity in form an affidavit may—

(a) unless the Court otherwise orders, be filed; and

(b) with the leave of the Court, be used in evidence.

8.08 Filing and service of affidavits

(1) An affidavit must be filed.

(2) The affidavit must be served on the following persons—

(a) the applicant or respondent (as the case requires);

(b) an adult affected family member or protected person;

(c) if the application to which the proceeding relates was made with the consent of a parent or guardian, that parent or guardian.

(3) An affidavit must not be served on a child (other than a child who is an applicant or respondent) without leave of the Court.

(4) An affidavit must be served in a manner set out in Rule 5.01(c), (d) or (e).

8.09 Service of affidavits if party is unrepresented

The registrar must serve an affidavit on a party who does not have legal representation.

8.10 Affidavit sworn before party

A party must not use in evidence on the party's behalf an affidavit sworn before—

(a) a party; or

(b) an employee of a party.

Order 9—Expert evidence

9.01 Statement or report of expert to be filed

(1) A party who intends at the hearing to adduce the evidence of a person as an expert witness must, at least 5 working days before the date of the hearing at which the evidence is intended to be adduced, file—

(a) a statement in accordance with subrule (2); or

(b) a copy of a report in accordance with subrule (3).

(2) The statement must—

(a) give the name and professional address of the witness, unless the witness believes that disclosing the witness' address would jeopardise the witness' safety; and

(b) describe the qualifications to give evidence as an expert; and

(c) give the substance of the evidence it is proposed to adduce from the witness as an expert.

(3) The report must—

(a) give the name of the witness; and

(b) describe the qualifications to give evidence as an expert.

(4) A party who has not filed a statement or a copy of a report under subrule (1) must not adduce any evidence from a witness as an expert at the hearing of a proceeding unless—

(a) the Court grants leave; or

(b) the other parties consent; or

(c) the evidence is adduced in cross‑examination.

9.02 Service of statement or report

(1) A statement or copy of a report must be served on the following persons—

(a) the applicant or respondent (as the case requires);

(b) an adult affected family member or protected person;

(c) if the application to which the proceeding relates was made with the consent of a parent or guardian, that parent or guardian.

(2) A statement or copy of a report must not be served on a child (other than a child who is an applicant or respondent) without leave of the Court.

(3) A statement or copy of a report must be served in a manner set out in Rule 5.01(c), (d) or (e).

9.03 Service of statement or report on unrepresented party

The registrar must serve a statement or copy of a report on a party who does not have legal representation.

9.04 Putting statement or report filed by other party in evidence

A party to a proceeding may put in evidence a statement or copy of a report filed by another party in accordance with Rule 9.01.

Order 10—Hearings

10.01 Order of hearing

The Court may give directions as to the order of evidence and generally as to the conduct of the hearing of a proceeding.

10.02 No addresses

Unless the Court otherwise orders, no opening or closing addresses may be made at the hearing of any proceeding.

10.03 Absence of party

(1) If, when the hearing of a proceeding is called on, any party is absent, the Court may—

(a) proceed with the hearing; or

(b) strike out or dismiss the application; or

(c) adjourn the hearing; or

(d) make any other order which the Court considers appropriate.

(2) If the absent party is a respondent who has failed to appear on bail, the Court may also issue a warrant for the arrest of the respondent.

10.04 Alternative arrangements for giving evidence

(1) This Rule applies if a party wishes to use alternative arrangements for giving evidence referred to in section 69(1)(a) or (b) of the Act.

(2) A party may apply to use alternative arrangements for giving evidence by notifying the Court in writing before the hearing.

(3) A notification under subrule (2) must set out—

(a) the reason the witness needs alternative arrangements for giving evidence; and

(b) the alternative arrangements sought.

(4) Despite subrule (2), if the party has not notified the Court, the Court may direct that alternative arrangements be made if they are available on the day of hearing at that venue of the Court.

Order 11—Orders and other matters

11.01 Certified extracts

(1) A certified extract from the Court record of any order is sufficient for any purpose for which an order is required.

(2) The Court may order, on its own motion or on the application of a party, that a certified extract must not include information that would jeopardise the safety of a party or any other person.

(3) In making an order under subrule (2), the Court may be constituted by a registrar.

(4) If a person is not satisfied with the decision of the Court constituted by a registrar, the person may seek leave to refer the matter to the Court for a decision.

11.02 Form of written explanation of interim family violence order

A written notice under section 57(2A) or 57A(4) of the Act must be in Form 1A.

11.03 Form of written explanation of final family violence order

A written notice under section 96(3) or 96A(4) of the Act must be in Form 1B.

Order 12—Venue and transfer of proceedings

12.01 Venue of Court

(1) An application under the Act must be made by filing the application at the proper venue of the Court.

(2) Filing must be effected by—

(a) filing in the office of the Court at that venue; or

(b) facsimile transmission or other electronic communication to the Magistrates' Court of Victoria After Hours Service in the case of an application made under section 20 or 44 of the Act.

(3) In the case of a family violence safety notice—

(a) the location for the first mention must be the proper venue of the Court; and

(b) the copy of the form or safety notice form must be filed—

(i) in the office of the Court at that venue if issued during business hours; or

(ii) by facsimile transmission or other electronic communication to the Magistrates' Court of Victoria After Hours Service if issued after business hours.

Note

Proper venue is defined in section 3(1) of the Magistrates' Court Act 1989.

12.02 Place of hearing of application

(1) A proceeding under the Act must be heard at the venue of the Court stated on the application, unless the Court orders otherwise.

(2) The Court may adjourn the hearing of a proceeding to another venue of the Court if it is satisfied that the interests of justice so require.

(3) In making a decision under subrule (2), the Court must have regard to the matters listed under paragraph (da) of the definition of proper venue in the Magistrates' Court Act 1989.

Order 13—Rehearings

13.01 Application for rehearing

(1) A respondent for a final order may make an application for rehearing under section 122 of the Act by filing the application at the venue of the Court where the order sought to be set aside was made.

(2) The registrar must—

(a) list the application for hearing; and

(b) serve a copy of the application and affidavit in support on the other parties to the proceeding.

(3) If the application for rehearing is struck out because the applicant failed to appear at the time fixed for hearing of the application, any further application for rehearing is taken to be an application for leave to reapply under section 122(4) of the Act.

13.02 Form of application

An application under Rule 13.01 must be in accordance with Form 2.

13.03 Rehearing date

If the Court sets aside an order, the proceeding must be reheard on a date fixed by the Court.

Order 14—Appeals

14.01 Form of notice of appeal

For the purposes of section 116 of the Act, a notice of appeal must be in accordance with Form 3.

Note

See section 115 of the Act for the court to which the appeal must be made.

14.02 Stay of relevant decision

(1) An application under section 117 of the Act to stay the operation of a relevant decision must be filed.

(2) The registrar may serve an application under section 117 of the Act to stay the operation of a relevant decision on the following persons—

(a) the other parties to the proceeding in which the relevant decision was made;

(b) if the appeal relates to a family violence intervention order for a protected person who is a child—

(i) if the application for the order was made with the consent of a parent, that parent; or

(ii) if a parent of the child did not consent to the order, a parent of the child (other than the respondent) with whom the child normally or regularly resides;

(c) if the appeal relates to a family violence intervention order for a protected person who has a guardian, the guardian.

(3) If there are exceptional circumstances, the Court may grant a stay without serving the application on any other person.

Order 15—Miscellaneous

15.01 Risk assessments

A risk assessment is confidential and must not be—

(a) used in evidence in any proceeding; or

(b) disclosed to the respondent or an associate of the respondent to the proceeding to which the risk assessment relates.

Note

There is currently no Rule 15.02.

15.03 General power of amendment

For the purpose of determining the real question in issue between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document (including an application) in a proceeding be amended or that any party have leave to amend any document in the proceeding.

15.04 Directions

At any stage of a proceeding the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination.

Order 16—Procedure under the Vexatious Proceedings Act 2014

Part 1—Interpretation

16.01 Definitions

An expression used in the Vexatious Proceedings Act 2014 has the same meaning in this Order as it has in that Act.

Part 2—Applications and notices

16.02 Applications for leave to apply for extended litigation restraint orders that relate to intervention order legislation

(1) An application under section 18(1) of the Vexatious Proceedings Act 2014 by a person referred to in section 18(1)(b) or (c) of that Act for leave to apply for an extended litigation restraint order that relates to intervention order legislation must be in Form 4.

(2) An application referred to in this rule—

(a) must be supported by an affidavit; and

(b) must be made without notice to any person unless the Court orders otherwise.

16.03 Applications for extended litigation restraint orders that relate to intervention order legislation

(1) An application under section 18(1) of the Vexatious Proceedings Act 2014 for an extended litigation restraint order that relates to intervention order legislation must be in Form 5.

(2) An application referred to in this rule must be supported by an affidavit.

(3) In addition, a copy of the order granting leave to apply for the extended litigation restraint order must be attached to the application.

16.04 Applications for acting in concert orders—intervention order legislation

(1) An application under section 34 of the Vexatious Proceedings Act 2014 for an acting in concert order must be in Form 6.

(2) An application referred to in this rule must be supported by an affidavit.

16.05 Application for leave to proceed under extended litigation restraint order that relates to intervention order legislation

An application under section 52(2) of the Vexatious Proceedings Act 2014 by a person subject to an extended litigation restraint order for leave to commence or continue a proceeding must be—

(a) in Form 7, in the case of an application to continue a proceeding in the Court; and

(b) in Form 8, in any other case.

16.06 Application for leave to proceed under general litigation restraint order

An application under section 54 of the Vexatious Proceedings Act 2014 by a person subject to a general litigation restraint order for leave to commence or continue a proceeding that relates to intervention order legislation must be—

(a) in Form 9, in the case of an application to continue a proceeding; and

(b) in Form 10, in the case of an application to commence a proceeding.

16.07 Notice of applications

(1) Notice required to be given by a direction of the Court under section 61(2) of the Vexatious Proceedings Act 2014 must be in Form 11.

(2) The notice must be accompanied by a copy of every order made or direction given by the Court in the application to which the notice relates.

Note

Further requirements are stated in section 61(4) of the Vexatious Proceedings Act 2014.

16.08 Application for leave to apply for variation or revocation of extended litigation restraint order that relates to intervention order legislation

An application under section 65(2) of the Vexatious Proceedings Act 2014, by a person subject to an extended litigation restraint order that relates to intervention order legislation, for leave to apply to vary or revoke the order must be in Form 12.

16.09 Application to vary or revoke extended litigation restraint order that relates to intervention order legislation

(1) An application under section 65(2) of the Vexatious Proceedings Act 2014, by a person subject to an extended litigation restraint order that relates to intervention order legislation, to vary or revoke the order must be in Form 13.

(2) In addition, a copy of the order granting leave to apply to vary or revoke the extended litigation restraint order must be attached to the application.

16.10 Notice of application to vary or revoke litigation restraint order

(1) Notice required to be given by a direction of the Court under section 68(2) of the Vexatious Proceedings Act 2014 must be in Form 14.

(2) The notice must be accompanied by a copy of every order made or direction given by the Court in the application to which the notice relates and in the preceding leave application.

Note

Further requirements are stated in section 68(4) of the Vexatious Proceedings Act 2014.

Part 3—Provisions applying to applications

16.11 Application of Part

This Part applies to an application that is made under any of the following sections of the Vexatious Proceedings Act 2014—

(a) section 18(1);

(b) section 34 in the case where the application relates to a person who is acting in concert with a person who is subject to an extended litigation restraint order that relates to intervention order legislation.

16.12 Service of applications

(1) The applicant must serve a copy of the application and a copy of any affidavit in support on every person to whom notice of the application is to be given unless otherwise provided by these Rules.

(2) The application must be served within a reasonable time before the day for hearing named in the application, and in no case later than 2 p.m. on the previous day, or where the office of the Court was closed on the day before the day for hearing, not later than 2 p.m. on the day the office was last open.

16.13 Day for hearing

(1) If an application has not been served a registrar may, at the request of the party who filed it, amend the application on or before the day for hearing named in the application to name another day.

(2) The application may be amended—

(a) by a magistrate; or

(b) by a judicial registrar; or

(c) by a registrar.

(3) An application must not be amended under this Rule more than once.

(4) This Rule does not limit the power of the Court under Rule 36.01 of Magistrates' Court General Civil Procedure Rules 2010[7].

16.14 Adjournment

(1) The Court may adjourn the hearing of an application on such terms as it thinks fit.

(2) The Court constituted by a registrar—

(a) may by consent order that the hearing of an application be adjourned to a particular date or for a particular time or generally, and reserve the costs of the adjournment; and

(b) must record the adjournment and any reservation of the costs by indorsement on the court file.

(3) If the hearing of an application is adjourned under paragraph (2), the Court may thereafter, whether the costs of the adjournment were reserved or not, make an order in relation to the costs of or occasioned by the adjournment as it thinks fit.

16.15 Absence of party to application

(1) If any person to whom an application is addressed fails to attend, the Court may hear the application if satisfied that the application was duly served.

(2) If on an application the applicant fails to attend, the Court may dismiss the application or make such other order as it thinks fit.

Form 1—Subpoena

Rule 7.01

SUBPOENA

In the Magistrates' Court at: [specify venue] Case No:

Applicant:

Affected family member or protected person:

Respondent:

Nature of proceeding:

To: [name of person to whom subpoena is addressed]

Of: [address]

You are required to: [tick one box only]

□ attend court and give evidence in the proceeding OR

□ attend court and give evidence in the proceeding and produce the following documents or things: [specify documents or things that person must produce] OR

□ produce at the hearing the following documents or things: [specify documents or things that person must produce]

If you are required to attend court and give evidence you must attend the hearing.

If you fail to attend the hearing or fail to produce the documents or things required by this subpoena, a warrant for your arrest may be issued.

Production of documents and things before the hearing

If you are required to produce documents or things, you may provide them to the registrar of the Magistrates' Court at [specify venue] by hand or by post.

The registrar must receive the documents or things no later than 2 business days before the date of the hearing.

Details of hearing

This case will be heard at the Magistrates' Court at [specify venue].

Court address: Phone:

Date and time of hearing:

Details of issue

This subpoena was issued at [specify court venue] by [Registrar/Magistrate].

Date issued:

Subpoena filed by: [name of party or party's legal representative]

Form 1A substituted by S.R. No. 59/2019 rule 4.

Form 1A—Explanation of interim family violence intervention order

Rule 11.02

Information Sheet—Interim Intervention Order

An Interim Family Violence Intervention Order has been made against
"the respondent".

The person this Order protects is called "the protected person". Children can be included as protected people because being around family violence can cause children serious harm.

1. The Court has made this Interim Order to stop harmful behaviour and protect people. The law gives the Court the power to make this Order because the community values safe and respectful relationships.

2. This Interim Order makes rules (conditions) for the respondent to obey. It says the respondent must not behave in certain ways, be around certain people or go to certain places.

3. If the rules in this Interim Order are broken, it is a crime and the respondent may be arrested and charged. The respondent could go to prison or receive another kind of penalty.

4. Only the Court can change ("vary") or cancel ("revoke") the Order.

The respondent must not pressure the protected person to change or cancel the Order.

It is a breach of the Interim Order to do so.

5. This Interim Order is made against the respondent, so the respondent must obey it. Even if someone asks the respondent to do something that breaks the rules in the Interim Order, the respondent must still obey the Order.

6. The respondent must not use someone else, including family, to do things on their behalf that the Interim Order says they cannot do.

7. If the protected person and respondent have children this Interim Order may affect whether the respondent can spend time with them. Speak to a lawyer about what the Order says.

8. If you have orders from another court, this Interim Order may affect them. Speak to a lawyer about what the Interim Order says.

9. If the respondent has firearms or weapons, they may not be allowed to keep them. Check to see what the Interim Order says.

10. This Interim Order will say how long it lasts and when you may need to return to court. Check to see what it says. The interim Order is in place until a court can decide on whether to make a Final Order.

11. Any Intervention Order is recognised throughout Australia.

Read the Interim Order more than once and get advice about anything you don't understand.

Police cannot give you legal advice.

For more information:

Victoria Legal Aid <www.legalaid.vic.gov.au> or 1300 792 387

Victorian Aboriginal Legal Service www.vals.org.au or 1800 064 865

Djirra www.djirra.org.au or 1800 105 303

Men's Referral Service www.ntv.org.au or 1300 766 491

FV support and information www.safesteps.org.au or 1800 015 188

Children, including unborn babies, can be harmed by family violence. This includes:

• Children knowing that it is happening even if they are not there at the time.

• Children seeing damaged property or injured people.

• Children knowing one parent is afraid of, or controlled by, the other.

• Children knowing that the family is controlled by one parent's behaviour and moods.

• Children intervening to protect a parent or calm one down.

Family violence includes a wide range of behaviours. Below are some examples.

Form 1B substituted by S.R. No. 59/2019 rule 5.

Form 1B—Explanation of final family violence intervention order

Rule 11.03

Information Sheet—Final Intervention Order

A Final Family Violence Intervention Order has been made against
"the respondent".

The person this Final Order protects is called "the protected person". Children can be included as protected people because being around family violence can cause children serious harm.

1. The Court has made this Final Order to stop harmful behaviour and protect people. The law gives the Court the power to make this Order because the community values safe and respectful relationships.

2. This Final Order makes rules (conditions) for the respondent to obey. It says the respondent must not behave in certain ways, be around certain people or go to certain places.

3. If the rules in this Final Order are broken, it is a crime and the respondent may be arrested and charged. The respondent could go to prison or receive another kind of penalty.

4. Only the Court can change ("vary") or cancel ("revoke") the Order.

The respondent must not pressure the protected person to change or cancel the Order.

It is a breach of the Final Order to do so.

5. This Final Order is made against the respondent, so the respondent must obey it. Even if someone asks the respondent to do something that breaks the rules in the Final Order, the respondent must still obey the Order.

6. The respondent must not use someone else, including family, to do things on their behalf that the Final Order says they cannot do.

7. If the protected person and respondent have children this Final Order may affect whether the respondent can spend time with them. Speak to a lawyer about what the Order says.

8. If you have orders from another court, this Final Order may affect them. Speak to a lawyer about what the Final Order says.

9. If the respondent has firearms or weapons, they may not be allowed to keep them. Check to see what the Final Order says.

10. This Final Order will say how long it lasts and when you may need to return to court. Check to see what it says.

11. Any Final Order is recognised throughout Australia.

Read the Final Order more than once and get advice about anything you don't understand.

Police cannot give you legal advice.

For more information:

Victoria Legal Aid www.legalaid.vic.gov.au or 1300 792 387

Victorian Aboriginal Legal Service www.vals.org.au or 1800 064 865

Djirra www.djirra.org.au or 1800 105 303

Men's Referral Service www.ntv.org.au or 1300 766 491

FV support and information www.safesteps.org.au or 1800 015 188

Children, including unborn babies, can be harmed by family violence. This includes:

• Children knowing that it is happening even if they are not there at the time.

• Children seeing damaged property or injured people.

• Children knowing one parent is afraid of, or controlled by, the other.

• Children knowing that the family is controlled by one parent's behaviour and moods.

• Children intervening to protect a parent or calm one down.

Family violence includes a wide range of behaviours. Below are some examples.

Form 2 substituted by S.R. No. 59/2019 rule 6.

Form 2—Application for rehearing

Rule 13.02

APPLICATION FOR REHEARING

In the Magistrates' Court at: [specify venue] Case No:

Applicant: [full name of applicant for rehearing]

Applicant's address:

Respondent: [full name of respondent to this application]

Respondent's address:

Protected person or person protected by the order:

Address:

Details of the application you would like reheard

I (the applicant) am the respondent to an application for a family violence intervention order.

The application was made at [specify court location] on [date].

The application came to my attention on [date].

Have you previously applied for a rehearing of this application? Yes*/No*

Note: If you failed to attend at the time fixed for the hearing of the application and the application was struck out by the Court, you will require leave of the Court to make another application.

Reasons for applying for rehearing

My reason for seeking a rehearing of the application is:

□ I was not personally served with the application; or

□ the application was not brought to my attention by an order for alternative service or substituted service prior to the making of the final order; or

□ there are exceptional circumstances and a rehearing is fair and just.

These circumstances are: [briefly state the reasons why you did not attend the hearing of the application]

Affidavit

I [full name] of [address] *make oath/*affirm and say:

[insert statement to be sworn or affirmed in numbered paragraphs]

The contents of this affidavit are true and correct and I make it knowing that a person making a false affidavit may be prosecuted for the offence of perjury.

*SWORN/*AFFIRMED at: [place]

ON: [date]

[signature of person making the affidavit]

BEFORE ME:

[name, statement of the capacity in which the authorised affidavit taker has authority to take the affidavit, and personal or professional address in legible writing, typing or stamp]

A person authorised under section 19(1) of the Oaths and Affirmations Act 2018 to take an affidavit.

*delete if inapplicable

Form 3—Notice of appeal

Rule 14.01

NOTICE OF APPEAL

In the Magistrates' Court at: [specify venue] Appeal No: Case No:

Appellant's name:

Appellant's address for service:

Name and address of appellant's solicitor:

Respondent's name:

Respondent's address:

TO

The Registrar of the Magistrates' Court at:

*The Registrar of the County Court /*Prothonotary [If the appeal is to the trial Division of the Supreme Court] at:

The abovenamed respondent:

Details of the proceeding appealed

Venue of the Magistrates' Court from which proceeding is appealed:

Date order made:

Nature of proceeding:

[Please attach copy of order to this Form]

Grounds of appeal

[Briefly state the grounds for the appeal]

**The Appellant requests the Registrar of the County Court/Prothonotary to list the appeal

Details of the appeal:

The appeal is to be heard by the *County Court/*Supreme Court sitting at:

Date of appeal: Time of appeal:

Notice of appeal filed at: Date:

Signature of Appellant: Signature of *Registrar/*Prothonotary:

*delete if inapplicable

Form 4—Application for leave to apply for
extended litigation restraint order

Rule 16.02

[heading as in Form 5A of the Magistrates' Court General Civil Procedure Rules 2010]/[heading in accordance with Rule 27.02 of those Rules]

Application for Leave to Apply for Extended Litigation Restraint Order

(Section 18(1) of the Vexatious Proceedings Act 2014)

I, [name], apply under section 18(1) of the Vexatious Proceedings Act 2014 for leave to apply for an extended litigation restraint order.

In accordance with section 18(3) of that Act, I contend that there is merit in the application and that the making of the application would not be an abuse of process on the basis of the following grounds: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT

The applicant seeks—

1. leave to apply for an extended litigation restraint order;

2. [set out any other orders sought].

ACCOMPANYING AFFIDAVIT

This application is accompanied by an affidavit in support of the order(s) sought in the application.

FILED [insert date].

This application was filed—

*(a) by the applicant in person.

*(b) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].

*(c) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].

The address of the applicant is:

The address for service of the applicant is:

Date:

Signed

*delete if inapplicable

Form 5—Application for extended litigation restraint order

Rule 16.03

[heading as in Form 5A of the Magistrates' Court General Civil Procedure Rules 2010]/[heading in accordance with Rule 27.02]

Application for Extended Litigation Restraint Order

(Section 18(1) of the Vexatious Proceedings Act 2014)

I, [name], apply for an extended litigation restraint order under section 18(1) of the Vexatious Proceedings Act 2014.

Leave was granted to me to apply by order of [insert name of Court] on [insert date]. Attached to this application is a copy of that order.

I contend that the order should be made on the following grounds: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT

The applicant seeks—

1. an extended litigation restraint order;

2. [set out any other orders sought].

SUMMONS

To: [identify each party or other person to whom the application is addressed and state address of each person not a party].

You are summoned to attend before the Court on the hearing of the application for the orders sought.

The application will be heard in the Magistrates' Court of Victoria at [insert venue] on [insert date] at [insert time] *a.m./*p.m. or so soon afterwards as the business of the Court allows.

ACCOMPANYING AFFIDAVIT

This application is accompanied by an affidavit in support of the order(s) sought in the application.

FILED [insert date].

This application was filed—

*(a) by the applicant in person.

*(b) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].

*(c) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].

The address of the applicant is:

The address for service of the applicant is:

Date:

Signed

*delete if inapplicable

Form 6—Application for acting in concert order

Rule 16.04

[heading as in Form 5A of the Magistrates' Court General Civil Procedure Rules 2010]/[heading in accordance with Rule 27.02]

Application for Acting In Concert Order

(Section 34 of the Vexatious Proceedings Act 2014)

I, [name], am a person referred to in section *34(a)/*34(b) of the Vexatious Proceedings Act 2014 and apply under that section for an acting in concert order.

I contend that the order should be made on the following grounds: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT

The applicant seeks—

1. an acting in concert order;

2. [set out any other orders sought].

SUMMONS

To: [identify each party or other person to whom the application is addressed and state address of each person not a party].

You are summoned to attend before the Court on the hearing of the application for the orders sought.

The application will be heard in the Magistrates' Court of Victoria at [insert venue] on [insert date] at [insert time] *a.m./*p.m. or so soon afterwards as the business of the Court allows.

ACCOMPANYING AFFIDAVIT

This application is accompanied by an affidavit in support of the order(s) sought in the application.

FILED [insert date].

This application was filed—

*(a) by the applicant in person.

*(b) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].

*(c) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].

The address of the applicant is:

The address for service of the applicant is:

Date:

Signed

*delete if inapplicable

Form 7—Application for leave to continue proceeding by person subject to extended litigation restraint order

Rule 16.05

[heading as in Form 5A of the Magistrates' Court General Civil Procedure Rules 2010]/[heading in accordance with Rule 27.02]

Application for Leave to Continue Proceeding by Person Subject to Extended Litigation Restraint Order

(Section 52(2) of the Vexatious Proceedings Act 2014)

I, [name], a person subject to an extended litigation restraint order that relates to intervention order legislation [identify the relevant order], apply under section 52(2) of the Vexatious Proceedings Act 2014 for leave to continue a proceeding to which the order relates.

In accordance with section 53 of that Act, I contend that the proceeding is not a vexatious proceeding and that there are reasonable grounds for the proceeding, namely that: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT

The applicant seeks—

1. leave to continue this proceeding;

2. [set out any other orders sought].

ACCOMPANYING AFFIDAVIT

This application is accompanied by an affidavit disclosing the details required under section 56 of the Vexatious Proceedings Act 2014 as follows—

(a) details of each application for leave to proceed made by the applicant;

(b) details of each application for leave to commence or continue a proceeding made by the applicant under section 21 of the Supreme Court Act 1986, as in force immediately before its repeal;

(c) details of each interlocutory application made or proceeding commenced or conducted by the applicant—

(i) that is a vexatious application or a vexatious proceeding (as defined in the Act); or

(ii) which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;

(d) an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) (if any);

(e) all other facts material to the application, whether in support of or adverse to the application, which are known to the applicant.

FILED [insert date].

This application was filed—

*(a) by the applicant in person.

*(b) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].

*(c) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].

The address of the applicant is:

The address for service of the applicant is:

Date:

Signed

*delete if inapplicable

Form 8—Application for leave to commence proceeding by person subject to extended litigation restraint order

Rule 16.05

IN THE MAGISTRATES' COURT

OF VICTORIA

20 No.

AT

IN THE MATTER of an application under section 52(2) of the Vexatious Proceedings Act 2014*.*

Application for Leave to Commence Proceeding by Person Subject to Extended Litigation Restraint Order

I, [name], a person subject to an extended litigation restraint order that relates to intervention order legislation [identify the relevant order], apply under section 52(2) of the Vexatious Proceedings Act 2014 for leave to commence a proceeding to which the order relates.

In accordance with section 53 of that Act, I contend that the proceeding is not a vexatious proceeding and that there are reasonable grounds for the proceeding, namely that: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT

The applicant seeks—

1. leave to commence a proceeding, namely, [set out full details of proceeding for which leave is sought, including the names and addresses of all proposed parties];

2. [set out any other orders sought].

ACCOMPANYING AFFIDAVIT

This application is accompanied by an affidavit disclosing the details required under section 56 of the Vexatious Proceedings Act 2014 as follows—

(a) details of each application for leave to proceed made by the applicant;

(b) details of each application for leave to commence or continue a proceeding made by the applicant under section 21 of the Supreme Court Act 1986, as in force immediately before its repeal;

(c) details of each interlocutory application made or proceeding commenced or conducted by the applicant—

(i) that is a vexatious application or a vexatious proceeding (as defined in the Act); or

(ii) which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;

(d) an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) (if any);

(e) all other facts material to the application, whether in support of or adverse to the application, which are known to the applicant.

FILED [insert date].

This application was filed—

*(a) by the applicant in person.

*(b) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].

*(c) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].

The address of the applicant is:

The address for service of the applicant is:

Date:

Signed

*delete if inapplicable

Form 9—Application for leave to continue proceeding by person subject to general litigation restraint order

Rule 16.06

[heading as in Form 5A of the Magistrates' Court General Civil Procedure Rules 2010]/[heading in accordance with Rule 27.02]

Application for Leave to Continue Proceeding by Person Subject to General Litigation Restraint Order

(Section 54 of the Vexatious Proceedings Act 2014)

I, [name], a person subject to a general litigation restraint order [identify the relevant order], apply under section 54 of the Vexatious Proceedings Act 2014 for leave to continue *this proceeding/*a proceeding, namely [identify relevant proceeding].

In accordance with section 55 of that Act, I contend that *this proceeding/
*the proceeding is not a vexatious proceeding and that there are reasonable grounds for the proceeding, namely that: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT

The applicant seeks—

1. leave to continue *this proceeding/*a proceeding, namely [identify the proceeding];

2. [set out any other orders sought].

ACCOMPANYING AFFIDAVIT

This application is accompanied by an affidavit disclosing the details required under section 56 of the Vexatious Proceedings Act 2014 as follows—

(a) details of each application for leave to proceed made by the applicant;

(b) details of each application for leave to commence or continue a proceeding made by the applicant under section 21 of the Supreme Court Act 1986, as in force immediately before its repeal;

(c) details of each interlocutory application made or proceeding commenced or conducted by the applicant—

(i) that is a vexatious application or a vexatious proceeding (as defined in the Act); or

(ii) which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;

(d) an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) (if any);

(e) all other facts material to the application, whether in support of or adverse to the application, which are known to the applicant.

FILED [insert date].

This application was filed—

*(a) by the applicant in person.

*(b) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].

*(c) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].

The address of the applicant is:

The address for service of the applicant is:

Date:

Signed

*delete if inapplicable

Form 10—Application for leave to commence proceeding by person subject to general litigation restraint order

Rule 16.06

IN THE MAGISTRATES' COURT

OF VICTORIA

20 No.

AT

IN THE MATTER of an application under section 54 of the Vexatious Proceedings Act 2014*.*

Application for Leave to Commence Proceeding by Person Subject to General Litigation Restraint Order

I, [name], a person subject to a general litigation restraint order [identify the relevant order], apply under section 54 of the Vexatious Proceedings Act 2014 for leave to commence a proceeding.

In accordance with section 55 of that Act, I contend that the proposed proceeding would not be a vexatious proceeding and that there are reasonable grounds for the proposed proceeding, namely that: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT

The applicant seeks—

1. leave to commence a proceeding, namely, [set out full details of proposed proceeding for which leave is sought, including the names and addresses of all proposed parties];

2. [set out any other orders sought].

ACCOMPANYING AFFIDAVIT

This application is accompanied by an affidavit disclosing the details required under section 56 of the Vexatious Proceedings Act 2014 as follows—

(a) details of each application for leave to proceed made by the applicant;

(b) details of each application for leave to commence or continue a proceeding made by the applicant under section 21 of the Supreme Court Act 1986, as in force immediately before its repeal;

(c) details of each interlocutory application made or proceeding commenced or conducted by the applicant—

(i) that is a vexatious application or a vexatious proceeding (as defined in the Act); or

(ii) which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;

(d) an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) (if any);

(e) all other facts material to the application, whether in support of or adverse to the application, which are known to the applicant.

FILED [insert date].

This application was filed—

*(a) by the applicant in person.

*(b) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].

*(c) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].

The address of the applicant is:

The address for service of the applicant is:

Date:

Signed

*delete if inapplicable

Form 11—Notice of application for leave to proceed

Rule 16.07

[heading as in form used in application]

Notice of Application for Leave to Proceed

(Section 61 of the Vexatious Proceedings Act 2014)

TO:

(a) the Attorney-General;

(b) [name of person to be given notice of the application in accordance with the Court's direction, and if more than one, list separately].

TAKE NOTICE that [name] of [address], a person subject to a general litigation order or an extended litigation restraint order that relates to intervention order legislation [identify the relevant order], has made an application to the Court for leave to proceed as follows: [describe the relief sought in the application].

Under section *60/*61(2) of the Vexatious Proceedings Act 2014, the Court has directed that notice of the application for leave to proceed be given to you.

This notice is accompanied by a copy of the application for leave to proceed and by a copy of every order made or direction given by the Court in the application to which this notice relates.

You are entitled to make submissions in relation to the application.

Date:

Any Questions?

If you have any questions, please contact the registrar at the Magistrates' Court of Victoria [venue], Tel: [insert telephone number], Hours: 9 a.m. to 4:30 p.m. each business day.

*delete if inapplicable

Form 12—Application for leave to apply to vary or revoke extended litigation restraint order

Rule 16.08

[heading as in Form 5A of the Magistrates' Court General Civil Procedure Rules 2010]/[heading in accordance with Rule 27.02]

Application for Leave to Apply to Vary or Revoke Extended Litigation Restraint Order

(Section 65(2) of the Vexatious Proceedings Act 2014)

I, [name], a person subject to an extended litigation restraint order that relates to intervention order legislation [identify the relevant order] apply for leave to apply to *vary/*revoke that order under section 65(2) of the Vexatious Proceedings Act 2014.

I contend that leave to apply should be given to *vary the order/*revoke the order on the following grounds: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT

The applicant seeks leave to apply for—

*1. variation of the order in the following manner [specify variation of order sought];

*1. the revocation of the order;

2. [set out any other orders sought].

FILED [insert date].

This application was filed—

*(a) by the applicant in person.

*(b) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].

*(c) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].

The address of the applicant is:

The address for service of the applicant is:

Date:

Signed

*delete if inapplicable

Form 13—Application to vary or revoke extended litigation restraint order

Rule 16.09

[heading as in Form 5A of the Magistrates' Court General Civil Procedure Rules 2010]/[heading in accordance with Rule 27.02]

Application to Vary or Revoke Extended Litigation Restraint Order

(Section 65(2) of the Vexatious Proceedings Act 2014)

I, [name], a person subject to an extended litigation restraint order that relates to intervention order legislation [identify the relevant order] apply to *vary/*revoke that order under section 65(2) of the Vexatious Proceedings Act 2014.

Leave was granted to me to apply to *vary/*revoke that order by order of [insert name of Court] on [insert date]. Attached to this application is a copy of that order.

I contend that the order should be *varied in the manner set out below/*revoked on the following grounds: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT

The applicant seeks—

*1. variation of the order in the following manner [specify variation of order sought];

*1. revocation of the order;

2. [set out any other orders sought].

FILED [insert date].

This application was filed—

*(a) by the applicant in person.

*(b) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].

*(c) for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].

The address of the applicant is:

The address for service of the applicant is:

Date:

Signed

*delete if inapplicable

Form 14—Notice of application to vary or revoke extended litigation restraint order

Rule 16.10

[heading as used in application for leave to vary or revoke litigation restraint order]

Notice of Application to Vary or Revoke Extended Litigation Restraint Order

(Section 68 of the Vexatious Proceedings Act 2014)

TO:

(a) the Attorney-General;

(b) [name of person to be given notice of the application in accordance with the Court's direction, and if more than one, list separately].

TAKE NOTICE that [name] of [address], a person subject to an extended litigation restraint order, has made an application to the Court to *vary the extended litigation restraint order in the following manner [describe variation sought]/*revoke the litigation restraint order.

Under section 68(2) of the Vexatious Proceedings Act 2014, the Court has directed that notice of the application for *variation/*revocation be given to you.

This notice is accompanied by a copy of the application for *variation/
*revocation and by a copy of every order made or direction given by the Court in the application for *variation/*revocation and in the preceding leave application.

You are entitled to make submissions in relation to the application for *variation/*revocation.

Date:

Any Questions?

If you have any questions, please contact the registrar at the Magistrates' Court of Victoria [venue], Tel: [insert telephone number], Hours: 9 a.m. to 4:30 p.m. each business day.

*delete if inapplicable

Dated: 23 October 2018

PETER LAURITSEN,
Chief Magistrate

LANCE IVAN MARTIN,
Deputy Chief Magistrate

FELICITY BROUGHTON,
Deputy Chief Magistrate

═════════════

Endnotes

1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

The Magistrates' Court (Family Violence Protection) Rules 2018, S.R. No. 182/2018 were made on 23 October 2018 by the Chief Magistrate together with 2 Deputy Chief Magistrates jointly under section 209 of the Family Violence Protection Act 2008, No. 52/2008 and under section 16(1D)(1E) of the Magistrates' Court Act 1989, No. 51/1989 and came into operation on 3 December 2018: rule 1.03.

The Magistrates' Court (Family Violence Protection) Rules 2018 will sunset 10 years after the day of making on 23 October 2028 (see section 5 of the Subordinate Legislation Act 1994).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule. Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms.
See section 36(1A)(2A)(2B).

• Examples, diagrams or notes

All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule. Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule. See section 36(3A).

• Punctuation

All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule. Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).

• Provision numbers

All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001. Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule. See section 36(3)(3D)(3E).

2 Table of Amendments

This publication incorporates amendments made to the Magistrates' Court (Family Violence Protection) Rules 2018 by statutory rules, subordinate instruments and Acts.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Magistrates' Court (Family Violence Protection) and (Personal Safety Intervention Orders) Amendment Rules 2019, S.R. No. 59/2019

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

3 Amendments Not in Operation

There are no amendments which were Not in Operation at the date of this publication.

4 Explanatory details

1. Introductory Note: S.R. No. 96/2011 as amended by S.R. No. 203/2014. ↑

2. Rule 1.04(a): S.R. No. 157/2008 as amended by S.R. Nos 95/2011, 203/2014, 144/2017 and 42/2018. ↑

3. Rule 1.04(b): S.R. No. 95/2011. ↑

4. Rule 1.04(c): S.R. No. 203/2014. ↑

5. Rule 1.04(d): S.R. No. 144/2017. ↑

6. Rule 1.04(e): S.R. No. 42/2018. ↑

7. Rule 16.13(4): S.R. No. 140/2010. Reprint No. 3 as at 15 March 2018. Reprinted to S.R. No. 128/2017. ↑