The aggrieved, the respondent, a named person, an authorised person, a person acting under another Act or a police officer may make an application to vary a domestic violence order. Variations may be made to conditions, duration of or persons named on the order (s 91 DFVP Act). A court can also vary a domestic violence order on its own initiative.
Before varying a domestic violence order, the things that the court must look at include why the order was made, any findings of fact that were made by a magistrate when the order was made and whether there has been compliance with any previous voluntary intervention order. It must also consider the safety, protection and wellbeing of the people who are protected by the order, the wishes of the aggrieved and, if the variation is to reduce the duration of the order, that there are reasons for doing so (ss 91-92 DFVP Act). Among other things, the court must be satisfied that the aggrieved has not been pressured into agreeing to the variation (s 92(2)(c) DFVP Act).
When a court can make or vary an order of its own accord
In child protection proceedings
The Childrens Court can make a domestic violence order when it is dealing with a child protection matter (s 43 DFVP Act). It can make a protection order against a parent of a child for whom an order is sought if:
- it is satisfied that a protection order could be made against that parent (based on the evidence and on the requirements of the DFVP Act as outlined above) and
- the person named as aggrieved is also a parent of the child who is subject to the application for a child protection order.
An existing domestic violence order can be varied during these proceedings. The court may consider extending the current order or varying its conditions to suit the circumstances of the case.
The court can make an order of its own volition or on the application of a party. An example may be a separate representative in a child protection matter applying for an order. Alternatively, the Director of Child Protection Litigation could apply as the applicant to the child protection order, or the Department of Child Safety, Youth and Women could apply in court assessment order proceedings only.
The court cannot make an order unless each party to the child protection proceeding has been given a reasonable opportunity to present evidence, and prepare and make submissions. The court can make or vary an order during a child protection hearing or it can adjourn to hear it at a later date.
Making or varying an order against an offender
When a court (sitting in its criminal jurisdiction) convicts a person of a domestic violence offence, it can, of its own initiative, make a protection order against the offender. It must be satisfied that a protection order could be made against the offender pursuant to s 37 of the DFVP Act.
If a protection order is already in force, the court must consider the order and whether it needs to be varied.
Again, the court must give the opportunity for the offender, the aggrieved (if possible) and the prosecuting authority to present evidence, and prepare and make submissions (see s 42 of the DFVP Act for further detail).