Last updated 14 March 2022
A person can apply to a court to vary (or change) a domestic violence order. Variations may be made to the conditions, the duration of the order or the people named on the order.
Before changing 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 (this usually happens after a trial and the magistrate has heard evidence from both parties and prefers one version of the facts over the other), when the order was made and whether there has been compliance with any voluntary intervention order.
The court must also consider the safety, protection and wellbeing of the people who are protected by the order and the wishes of the aggrieved.
Most importantly, the court must be satisfied that the aggrieved has not been pressured into agreeing to the variation (ss 91, 92 DFVP Act).
When a court can make or vary an order without anyone applying
In child protection proceedings
When a Childrens Court is dealing with a child protection matter, it can make a domestic violence order. It can make a domestic violence 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 the aggrieved is also a parent of the child who is involved in the application for a child protection order.
An existing domestic violence order can be varied during child protection 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 (e.g. a separate representative in a child protection matter can apply for an order).
Alternatively, the Director of Child Protection Litigation could apply as the applicant to the child protection order or the Department of Children, Youth Justice and Multicultural Affairs 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 (s 43 DFVP Act).
Making or varying an order against an offender
When a court convicts a person of a domestic violence offence, it can, of its own initiative, make a domestic violence order against the offender. It must be satisfied that a domestic violence order could be made against the offender (s 42 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 (s 42 (4) DFVP Act).