Guideline 6 – family violence protection order cases

Guideline 6 – family violence protection order cases

6.1 – applicants

Victoria Legal Aid (VLA) may make a grant of legal assistance to a person seeking a family violence protection order if all of the following apply:

  • the applicant is aged 18 years or older
  • the matter is listed for a contested hearing
  • the applicant is more likely than not to succeed in obtaining a family violence protection order.

VLA will not normally make a grant of legal assistance to an affected family member where the application has been brought by the police. VLA expects an applicant to begin proceedings with the help of the police or a Magistrates’ Court registrar.

The merits of the application

As well as meeting the usual requirements of the State reasonableness test the application for a family violence protection order must not be frivolous, vexatious or in bad faith.

6.1.1 – child applicants

VLA expects an applicant under the age of 18 years to be included in any application by an adult applicant.

VLA will make a grant of legal assistance to a child aged 14 years or older to seek leave to apply to the court for a family violence protection order.

VLA will make a grant of legal assistance to a child aged 14 years or older where a court has granted leave to a child to apply for a family violence protection order, or where the court decides a child should be separately legally represented.

6.2 – respondents

VLA may grant assistance to a respondent to oppose the making of a family violence protection order if:

  • the respondent is aged under 18 years
    or
  • the order would deprive the respondent of an important right (for example, it would exclude the respondent from their home)
    or
  • the respondent is in custody as a result of the alleged family violence
    and
  • the respondent is more likely than not to succeed in contesting the making of a family violence protection order in the terms sought by the applicant.

6.3 – court-ordered representation of applicants and respondents

Where a court makes an order under the Family Violence Protection Act 2008 or under section 357 the Criminal Procedure Act 2009 for VLA to fund the applicant and/or respondent for the purposes of cross-examination of a protected witness, VLA may limit the grant of legal assistance to the cross-examination of the protected witness.

Where VLA is ordered to provide representation, the matter will be allocated to an in-house practice at first instance. If the in-house practice is unable to act for the respondent and/or applicant, VLA will decide who the matter will be allocated to.

6.4 – children who are not applicants or respondents

Where the court grants leave on its own initiative for a child to be legally represented pursuant to section 62 of the Family Violence Protection Act, VLA will make a grant of legal assistance to the child.

Cross-applications for orders

If the person applying for a grant of legal assistance is both the applicant and the respondent in a family violence protection order matter, then:

  • if the person meets the guidelines for applicants but does not meet the guidelines for respondents, VLA will make a grant of legal assistance only for the application for a family violence protection order
  • if the person meets the guidelines for respondents but does not meet the guidelines for applicants (because, for example, the application is merely vexatious), VLA will make a grant of legal assistance only to enable the person to respond to the application made against them
  • VLA will only provide a single grant of legal assistance for a cross-application.

Proceedings for breach of a family violence protection order

If the person applies for a grant of legal assistance as a respondent in proceedings for breach of a family violence protection order, then VLA will assess the application under its Criminal law guidelines.

Applications by the respondent to appeal against an order, or to apply to revoke an order

If a respondent applies to appeal against the making of a family violence protection order, or to apply for its revocation, then this application cannot be the subject of a recommendation for assistance via the simplified grants assessment process. The applicant would need to apply via the standard grants assessment process and demonstrate there are special circumstances present.

Documentary requirements

Simplified grants assessments process

Lawyers seeking a grant of legal assistance via the simplified grants assessment process should submit an application via ATLAS, only after ensuring that the following documents are retained on file (unless they are requested by VLA for assessment):

  • a copy of any application, complaint and complaint
  • if the person seeking a grant of legal assistance is a child, a copy of the court’s order granting leave for the child to apply (if this has been ordered)
  • the lawyer’s assessment of how the matter meets the relevant guideline
  • documentary proof of any State special circumstances
  • relevant proof of means.