4. What happens when a child protected by a family violence intervention order turns 18?

The law on the duration of family violence intervention orders

4.1​When the court makes a final FVIO, it can set an expiry date for the order.^[267]

4.2​Section 99 of the FVPA states that a FVIO remains in force for the period specified in the order unless it is sooner revoked or set aside on appeal.^[268] If the court does not set an expiry date it remains in force until it is revoked or set aside by the court.^[269]

4.3​Section 97(2) of the Act outlines the factors the court must take into account when deciding the duration of an order:

•​the safety of the protected person is paramount

•​any assessment by the applicant of the level and duration of the risk from the respondent

•​if the applicant is not the protected person, the protected person’s views, including their assessment of the level and duration of the risk from the respondent.^[270]

4.4​The court may also consider anything the respondent raises that is relevant to how long the order should last.^[271]

No express provision to hear the views of children on the duration of a FVIO

4.5​Section 97(2) of the FVPA makes it clear that the safety of protected persons is paramount and that their views must be taken into account when deciding on order duration. While a ‘protected person’ may include anyone who is protected by a FVIO (including children) it is notable that there is no specific provision addressing the safety of, or the views of, children and young people in this context.^[272]

4.6​There are other mechanisms in the FVPA that enable children’s views to be heard. However, the provisions of the Act have the effect of discouraging the participation of children in most cases to protect them from harm.^[273] In determining whether to grant a child permission to be present, be represented, or give evidence in a FVIO proceeding, the court must consider the desirability of protecting the child ‘from unnecessary exposure to the court system’ and ‘the harm that could occur to the child and family relationships’.^[274]

Silence on what happens when a child turns 18

4.7​The FVPA is silent about what happens when a child protected by a FVIO turns 18. There is no specific provision directed to this issue. The law does not state that a FVIO protecting a child automatically expires when a child turns 18, nor does it explicitly state that a FVIO that goes beyond a child’s 18th birthday continues to protect them for the duration of the order.

Lack of case law on turning 18 while on a FVIO

4.8​In the absence of an express statement in the FVPA, case law (decisions made by courts) can provide guidance about the court’s power. However, case law about the court’s ability to make a FVIO that continues beyond a child’s 18th birthday is limited.

4.9​The Magistrates’ Court and Children’s Court are not courts of record. Proceedings are recorded but these audio recordings are not formally transcribed and published online—as they are for courts like the County Court or the Supreme Court.^[282] As recordings of matters in the Magistrates’ Court and Children’s Court may only be obtained by a party to a proceeding, there is little publicly available information that can shed light on the reasoning behind magistrates’ decisions to make orders that expire for children at 18.^[283] Representatives of the Magistrates’ Court told us ‘as far as [the Magistrates’ Court] is aware, there have been no appeals on duration’.^[284]

4.10​Available case law indicates magistrates have taken different approaches to the issue of expiry. In some cases, the court has made orders that expire on a child’s 18th birthday, even when protection continues beyond that time for other protected people.^[285] Other cases demonstrate that the courts have granted a FVIO for a child with an expiry date that falls after the child turns 18.^[286]

Guidance for judicial officers is silent on ‘ageing out’ of FVIOs

4.11​The Family Violence Bench Book is a key source of guidance for magistrates about how to determine order duration.^[287] However, the Bench Book is also silent about the issue of a child turning 18 while protected by an order, and the court’s power to make an order that continues to have effect beyond the age of 18.

4.12​In its guidance about determining conditions and durations of FVIOs, the Family Violence Bench Book states that the order should ‘meet the risk that the court has found that the respondent is likely to commit family violence again’.^[288] It outlines several other matters that may be relevant when determining the duration of a final order:

•​the history of the relationship, including the duration of the relationship

•​incidents of violence both during the relationship and after it ended

•​whether the court has made previous FVIOs between the protected person and the respondent

•​evidence of expert witnesses

•​the Multi-Agency Risk Assessment and Management (MARAM) framework

•​the likelihood that the respondent will undertake counselling or respond to behaviour change programs to reduce the risk of committing family violence

•​whether the risk of family violence is heightened by temporary risk factors that may subside, such as pregnancy, separation or drug use.^[289]

4.13​Further guidance about risk indicators is also included in the Family Violence Bench Book and family violence resources available via the Judicial College of Victoria.^[290] This includes a summary of the Family Violence Multi-Agency Risk Assessment and Management (MARAM) Framework Risk Factor Guidance.^[291]

4.14​While this guidance encourages the court to consider an adult affected family member’s perception of risk when making FVIOs, children’s perception of safety and their age are not included as indicators of risk which the court may consider.^[292]

4.15​There are other resources and guidance that inform how magistrates apply the law. Representatives of the Magistrates’ Court of Victoria told us that: ‘The law does not prohibit FVIOs being made beyond an 18th birthday.’ Representatives also advised that the Magistrates’ Court’s Leading the Change education program ‘covers the relevant legislative principles’ and that magistrates receive training on statutory interpretation. We also heard:

Many/most magistrates also have experience in the Children’s Court and are therefore conscious of young people as victim survivors and about including their voices in processes.^[293]

4.16​Despite this, consultations and submissions overwhelmingly identified inconsistent approaches being taken by magistrates on this question.

Young people experience different outcomes in family violence intervention order proceedings

4.17​Throughout our consultation process we heard that the silence in the law has led to young people experiencing different outcomes in relation to the duration of their orders, and that outcomes can vary depending on the location of the proceeding or the magistrate on the day.

Varying approaches are taken to the length of orders

4.18​We heard during consultations with court users that magistrates are taking varying approaches when applying the law to the length of FVIOs for children.

4.19​Consultation participants and submissions generally agreed that the outcome for a child or young person who has turned 18 in a FVIO matter ‘depends on the magistrate you get on the day’.^[294] For example, representatives of Berry Street told us they had observed:

… some magistrates making 2-year orders beyond an 18th birthday, some doing one year, some only ever doing them until the 18th birthday. Application of the law has been very hodge podge. The general sense provided by legal representatives is that it depends on how the magistrate exercises their discretion on the day.^[295]

4.20​We heard that practice often varies between court locations. A representative of Youthlaw told us ‘magistrates in regional areas seem to think they have to make the order expire at 18.’^[296]

4.21​Variation as to when orders expire for children is not necessarily a concern. It may reflect magistrates making an assessment based on the circumstances of each individual case, that is, appropriately applying the factors in section 97 of the FVPA when determining the duration of an order. Further, the Commission has been told that some young people may want their orders to end at 18.^[297]

4.22​In a joint submission with Safe and Equal, endorsed by Westjustice, Women’s Legal Service Victoria gave examples of some of the varied outcomes they have seen in matters before the court:

•​Indefinite FVIOs in circumstances where there has been serious family violence which can be specified as continuing until further order, meaning no end date.

•​FVIOs that extend up until a child’s 18th birthday (for example where an application for an FVIO is made when the child is 5 years old, and the order made extends up until the child’s 18th birthday – a duration of 13 years). We see these orders frequently made to manage risk whilst the parents are required to have ongoing contact to facilitate family law parenting arrangements.

•​FVIOs that end on the child’s 18th birthday where the magistrate does not believe they have the power to, or are unwilling to, make orders that extend beyond the young person’s 18th birthday.

•​FVIOs (or extensions) where the duration extends beyond a young person’s 18th birthday (for example, until the young person is 21 years of age). Recent examples include FVIO extensions beyond the young person’s 18th birthday where the respondent has breached the orders, and the young person has given a statement to police in relation to the breach.^[298]

4.23​Some of these examples indicate that magistrates are taking individual circumstances into account when setting the expiry date of an order, as exemplified by Anita and Sally’s case study below. However, other examples indicate that some magistrates may hold the view that they do not have the power to make orders beyond 18 under the FVPA.

4.24​A Gippsland Community Legal Service representative told us:

Our impression is that some magistrates believe an order can’t be progressed past a child’s 18th birthday. Others have formed a different view. There are differing views within Victoria police as well. The lack of clarity in the legislation leaves the issue to magistrates. It is difficult for them to navigate this issue when it is not clearly spelled out in the legislation. It needs to be expressly noted so that young people do not get a varying experience.^[299]

4.25​A representative of the County Court told us that most orders it sees are made to expire when children turn 18, and that, ‘Where it is difficult to obtain children’s evidence, the almost inevitable response will be for a magistrate to make the order until 18.’^[301]

4.26​Submissions from lawyers noted a similar variation of views held by legal practitioners. Law Institute of Victoria members observed that:

… the starting assumption for legal practitioners is that intervention orders expire on the protected person’s 18th birthday, with exceptions in very serious situations. Some practitioners note that views on this assumption can often differ.^[302]

4.27​Hume Riverina Community Legal Service noted that historically they more commonly saw FVIOs orders ending for young people at 18, but now it is more likely to see courts making orders without referencing a young person’s age at all.^[303]

4.28​This view was also expressed by a representative of Women’s Legal Service:

Our duty lawyers tell us that it is very inconsistent whether the court makes an order up to 18, beyond 18, or even considers age at all in deciding duration of FVIOs. Magistrates seem to be unsure about whether they can make an order beyond 18.^[304]

4.29​We heard that this leads to confusion for duty lawyers. Some report having to ask the magistrate to clarify.^[305]

Children are often given shorter orders than other protected persons

4.30​We heard that it is relatively common to see an older child given a much shorter order than other affected family members (AFMs).

4.31​Youthlaw submitted:

… in both [the Magistrates’ Court and Children’s Court], it is not uncommon for Magistrates to make a final order for a family where one of the children listed as an AFM has their order expire much earlier than the rest of the family, purely because the child turns eighteen during the duration of the substantive order. This is concerning given, under the same set of circumstances, a Magistrate has deemed that the parent and other sibling(s) of that young person require the protection of a FIVO for longer. This inconsistency may place a young person at significant risk, where they are suddenly no longer protected by an order, despite the Court considering that there is ongoing family violence risk for the rest of their family.^[306]

4.32​These concerns were echoed in other submissions:

While some Magistrates comment that orders will continue to protect the protected person (child of the AFM) after they turn 18, other Magistrates indicate that while the order will continue to protect the AFM for the duration of the order, the protected person (child of the AFM) will only receive the protection of the order until they turn 18, at which point they are required to make their own application if they would like further protection. We note that the actual orders rarely if ever reflect this different approach but instructions to parties are inconsistent and confusing.^[307]

Different outcomes depending on whether a child is separately represented

4.33​We also heard that the experiences of children and young people differ depending on whether a matter is heard in the Magistrates’ or Children’s Court.^[308] This is partly reflective of the different models of representation for children in the two courts. As we noted in Chapter 3, the Magistrates’ and Children’s Courts operate under different legislative frameworks, which means that the views of children will more routinely be heard before the Children’s Court. Conversely, the rules about Specialist Family Violence Courts in the Magistrates’ Court Act may constrain a magistrate’s ability to hear from a child in a FVIO matter.

4.34​Different service and resource models across the courts may also impact this. In consultation, we heard that busy family violence lists in the Magistrates’ Court may hear more than 50 matters in a day, limiting time for magistrates and legal representatives to consider children in their own right.^[309]

4.35​Submissions and consultation participants indicated they primarily see the inconsistency about ‘ageing out’ of orders in the Magistrates’ Court, rather than the Children’s Court. For example, Youthlaw submitted:

In our experience, the greatest disparity arises between orders made in the Children’s Court of Victoria (‘CCV’) (as a specialist Court), where judicial officers have dedicated expertise in matters surrounding young people, and those made in the Magistrates’ Court of Victoria.

It is our experience that Magistrates in the CCV tend to acknowledge that children (particularly those over the age of 12) are victim-survivors in their own right whose views should be heard by the court separately from their parent, in appropriate circumstances. It is not uncommon for Magistrates in the CCV to make an order for children to be separately represented, where it is sought by the child under section 62 of the Act. In our experience, orders may be made for children as young as 10 or 11 to be independently represented in appropriate circumstances. However, in the Magistrates’ Court, it is far less common for consideration to be given to children as victim-survivors of family violence in their own right, with separate needs from their parents. As such, fewer section 62 orders are made and the court is less often informed by the views of the child when making FVIOs for their protection.^[310]

4.36​Similarly, a representative of ARC Justice noted:

There’s a different approach to the children’s best interests because this is the Children’s Court’s core business. There is a greater focus on hearing more than just what is on the application, and a greater tendency to consider a child’s views.^[311]

4.37​Members of the Law Institute of Victoria submitted:

… intervention orders are most effective when they include the perspective of the young person, as reflected in the practice of the Children’s Court. In that jurisdiction, when an intervention order (‘IVO’) and a child protection matter are listened together and the young person has legal representation, the court is more likely to seek the views of the child (either informally or by considering their instructions), which provides the court with a more nuanced understanding of the young person’s perspective beyond the narrative presenting in an IVO application.^[312]

‘Ageing out’ when another affected family member seeks a FVIO variation

4.38​We also heard that the issue of ‘ageing out’ of orders sometimes happens when an affected family member (AFM) seeks a variation to a FVIO. At this point, some young people who have turned 18 are being removed from the FVIO and told to apply for an order in their own name.

4.39​Northern Community Legal Centre submitted:

Northern CLC’s experience is that when AFMs seek to extend FVIOs that include a protected person (child of the AFM) that is now over the age of 18, comments are made by the Magistrates that the protected person (child of the AFM) cannot be a protected person on the extended order and are required to make their own application for a new order listing them as the AFM.^[313]

4.40​A representative of Eastern Community Legal Centre also observed:

We have seen a few situations where an AFM has sought an extension or variation, and in the interim the child gets dropped off the order, because the Magistrate says, “the child is now an adult, so they can make an application if they want to.” We have seen this at [the Magistrates’ Court] multiple times and so we now advise clients that this is what is likely to happen. This can also happen where the client has not been given advice before court. The adult AFM may be making an application for variation because of slight changes to exclusions or their address. The child may be out of home. They are not at the hearing because they do not anticipate that these changes will affect them and they get removed from the order without agreement. It is a great shock to clients.^[314]

What we heard about how duration is determined

4.41​When making a FVIO, a magistrate will not ordinarily provide written reasons for their decision. Sometimes, reasons are given orally. Other times, the magistrate may not give any reasons beyond the legal tests being met. Even when oral reasons are given, they may be brief due to the time constraints a magistrate may face when hearing many FVIO matters in a single sitting day.^[315] As a result, it is difficult to form a view about why magistrates might be making orders that expire at 18. However, consultation and submissions outlined some of the reasons why magistrates may be doing so based on their experiences as affected family members or legal practitioners who routinely handle FVIO matters.

Family violence ends when a child leaves home

4.42​We were told that some magistrates think that a child impacted by family violence does not need an order beyond 18 years, believing that any risk will be minimised when the child becomes an adult and moves away from home.

4.43​Some young people we spoke to were told by the court that because they were moving out of home at 18 and away from parental conflict, they would no longer need protection. However, they told us that their safety concerns persisted despite moving away from the respondent:

Just because you are far away from the respondent doesn’t mean you’re safe. The perpetrator drove five hours to come and make contact with me. I went to the police, but they didn’t really do anything and didn’t know about the FVIO.^[316]

4.44​Of course, not all young people will move out of home at 18. We heard that this expectation may not reflect young people’s lived experiences, nor common practices and understandings of ‘adulthood’ that exist in some migrant and multicultural communities. For example, we were told that in some cultures, young people who have turned 18 are still considered children and continue to live in the family home well after they turn 18.^[317]

4.45​A representative of the Centre for Multicultural Youth told us:

For some young people from South-East Asian and other backgrounds, restrictions on freedoms continue after 18, and you can be viewed as children in the family context for longer. So, ageing out of an order at 18 does not really make sense in these family contexts.^[318]

Children can make up their own minds at 18

4.46​We were told that some magistrates have indicated that ending a FVIO at 18 gives young people the opportunity to decide for themselves, whether or not they want to be on an order.^[319]

4.47​Some magistrates reportedly assume children may want a relationship with a respondent as an adult and believe that the court should not restrict this.^[320] Though some young people who have turned 18 do want to reconnect with a respondent, this is not always the case, with many wanting to stay on their FVIO. We heard that one of the difficulties for the court is that where it is not hearing the views of the child, it may have to rely on assumptions.

Respondents’ arguments can be persuasive when the views of the child or young person aren’t heard

4.48​Children and young people’s views about when an order should end are commonly not reflected in FVIO proceedings. People observed that, while a respondent may be present in court and able to express their views on how long an order should last, children and young people usually are not. As a result, a magistrate’s decision about whether an order expires at 18 may be influenced by a respondent’s views but not informed by a young person’s wishes.

4.49​Victoria Police representatives told us that when a respondent is present in court they have ‘a full voice in proceedings, which they can use to deny or minimise the impact of their behaviour on the family. This can lead to a narrative that results in the magistrate being constrained in their decision-making’.^[321]

4.50​Some consultation participants noted that respondents may contest an order going past 18 as a tool of further abuse against victim-survivors (called systems abuse).^[322] Victoria Police identified that ‘consent is also often provided to a FVIO by a respondent on the basis that the order’s duration does not extend past 12 months’.^[323]

Perceived assumptions and bias

4.51​A submission from a young victim survivor of family violence suggested that gendered assumptions may have influenced the decision made about the duration of their FVIO:

In my case and my brother’s, the court viewed us as “boys” who could handle it. Our height, our size—were in my opinion—used to dismiss our fear. While family violence is fundamentally gendered, children and young people experience it through multiple lenses—trauma, age, powerlessness, and systemic invisibility.^[324]

4.52​Other consultation participants pointed to a range of assumptions and beliefs that may be influencing decision-making across the courts. A representative of Melbourne City Mission Group told us:

There are inconsistent views and beliefs by magistrates across courts about family violence and this can put young people at risk. Decisions may be being made based on beliefs about women influencing their children, and the idea that when children turn 18 they can have a relationship with their father and make their own decisions. Conversely, decisions may also be being made on assumptions that a mother is protecting a child and the order should be made for as long as she wants. Bias and assumptions result in different outcomes depending on who the magistrate is on a particular day. Clarity in the law would help to address this inconsistency.^[325]

Some young people want orders to end at 18

4.53​People we consulted with emphasised that children and young people’s experiences of family violence are not uniform. We heard that some young people welcome the expiry of their FVIO at 18 because they did not want to be on the order in the first place and may wish to re-establish contact with the respondent.^[326] We heard that many young people who have turned 18 feel that their voices and viewpoints were not heard by the court when the original order was made.^[327]

4.54​Victorian Aboriginal Legal Service observed they ‘often see children who are on their mother’s FVIO as a secondary applicant … seek to restore their relationship with the respondent (who is often their father) after turning 18’.^[328]

4.55​A representative of Youthlaw told us:

I often see young people trying to revoke orders rather than extend them because they want to maintain a relationship with the respondent, maybe because they didn’t have a say in the proceedings in the first place. Often this arises in connection with other family law matters from which children have felt excluded. When you add a FVIO in as well, children often feel like they doubly didn’t get to have a say in any of it. Sometimes children may want to reduce the conditions on the FVIO so they can still have some contact. They might say that the FVIO order happened without their input and for a range of reasons their experience was different to that of the primary AFM and they want contact with the respondent.^[329]

4.56​Consultation participants highlighted that family dynamics are complex, and that the relationship between two parents can be very different than the relationship between the adult perpetrator and the child or the child and the adult affected family member.^[330] For this reason, children victim-survivors may want a different outcome than their parent affected family member.^[331] In Chapter 7 we refer to calls for reform by a range of community legal centres to make it easier for young people to opt out of being on a FVIO after 18 if they wish to do so. This proposal will be considered in more detail in Stage 2.

Interaction with the family law system causes confusion

4.57​In Chapter 3 we discussed how FVIOs interact with child protection orders and parenting orders. In our consultations and in submissions we received we also heard that magistrates and others may be conflating the jurisdictions of family law and the Children’s Court, which contain clear cut-offs centring on a child’s 18th birthday, with the family violence jurisdiction.^[333]

4.58​A lawyer from the community legal sector told us, ‘the backdrop of Family Court [Federal Circuit and Family Court of Australia] litigation may be the reason the court seems to think children will have a different view at 18’.^[334] People told us that some magistrates may believe that a FVIO duration should align with parenting or child protection orders^[335], which end at 18.

4.59​We also heard this conflation occurs among legal practitioners. A lawyer from Barwon Community Legal Service observed:

As a family lawyer, with experience in family violence, I was taught that the law does say that orders expire at 18 … It was a family lawyer who taught me this rule, so they may have conflated Family Court and FVPA matters … I was told “remember that the court can only make these orders until 18.” It was only when I read the legislation that I realised that it is silent. It needs to be very clear in the legislation than an order does continue, because even lawyers believe this.^[336]

4.60​Other submissions have observed that magistrates may ‘read between the lines’ of parenting orders made in the family law jurisdiction, and the risk assessment made in that jurisdiction, rather than make their own assessment.^[337]

There are varying interpretations of powers to enforce orders lasting beyond 18

4.61​Victoria Police’s position is that orders can continue after a person turns 18, until they expire. The police practice manual is silent on this issue, however Victoria Police issued practice guidance to police members in May 2024 to this effect. This followed requests from members for clarity on the issue. Representatives of Victoria Police told us:

We do get emails from members seeking practice guidance about what happens to a child who is a protected person at 18. We issued communications to members in 2024 to advise that there is no reason that an order does not continue after 18. It was evident that there was enough inconsistent practice by the court that practice guidance needed to be issued to ensure that prosecutors made appropriate submissions regarding the application of section 99 to avoid this AFM cohort being removed from orders …

Victoria Police’s position … is that a child AFM [affected family member] can and should remain on an order after 18, especially where their protective needs are the same as the primary AFM. If their needs are different, police may pursue a different order.^[338]

4.62​Despite this, representatives of Victoria Police acknowledged in consultation that there may still be ‘different interpretations about duration at an operational level’.^[339] Without legislative clarity, consultation participants and submissions expressed concern that there is still scope for misinterpretation by police members, which has implications for enforcement of breaches of orders.^[340]

Confusion in the application of the law makes it difficult to advise clients

4.63​We heard that inconsistency in legal interpretation makes it difficult for legal practitioners to predict outcomes and advise clients.^[341] We heard this can make it difficult to manage clients’ expectations and can cause delays in orders being finalised, which can compound anxiety and trauma for victim-survivors.^[342]

4.64​A lawyer from Peninsula Community Legal Centre observed:

We had a case where a respondent contested an order to include a child because they were turning 18 in a few weeks. It was open to the respondent to do this and it’s still unclear if the child will have to make a fresh application at 18.^[343]

4.65​A representative of Westjustice recounted similar cases:

We had an example in court where two parents had FVIO cross-applications. One parent had all the children on the order as protected people, but since it was made, one of the children has turned 18. The other parent was disputing all the children being on the order including the one who had turned 18yrs during the adjournment. The young person turned up at court saying they did not want to be on order. We had to adjourn because legal representation is required, and the Magistrate was not sure whether this required a variation, and who makes this application if so. Are they no longer subject to the interim FVIO because they are no longer a child? If so, the parent strictly can’t apply for the final FVIO on behalf of a person who is no longer a child, under section 45.^[344] 

Inconsistency with the purposes of the Family Violence Protection Act and international law

4.66​We heard in consultations and submissions that automatically ageing children out of FVIOs when they turn 18 is inconsistent with the legislative purpose of the FVPA discussed in Chapter 3.

4.67​Youthlaw submitted:

Youthlaw considers that the current legislative framework and its application is not consistent with the intended purpose of the Act. In particular, Youthlaw considers that an order expiring by virtue of a child turning 18, and for no other reason does not:

1.​Maximise safety for children who have experienced family violence (in line with Section 1a of the Act);

2.​Prevent and reduce family violence to the greatest extent possible (in line with Section 1b of the Act); and

3.​Provide an effective and accessible system of family violence intervention orders (in line with section 2a of the Act).^[345]

4.68​A representative of the County Court identified that the focus should be on the fundamental purpose of the Act to prevent trauma to victims and that this should be reflected in the duration of orders.^[346]

4.69​We also heard from Youthlaw that a legislative approach that enables children to be heard in judicial processes would align with Australia’s obligations under the United Nations Convention on the Rights of the Child 1979, in particular Article 12, which provides:^[347]

1. ​States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. ​For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

4.70​The limitation on children’s participation was considered by Parliament when passing the FVPA. The restriction on children making an application was considered a reasonable and justified limitation of children’s rights to recognition before the law, and ‘likely to be protective and consistent with the interests of children’ under the Charter of Human Rights and Responsibilities Act 2006 (Vic).^[348] However, in practice, these legislative restrictions may be reducing the length of time that a person receives protection, reducing young people’s agency, and diminishing their wellbeing.

266. ​Submission 14, Stage 1 (Youthlaw) 14.

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267. ​Family Violence Protection Act 2008 (Vic) ss 97, 99.

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268. ​Ibid s 99(1).

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269. ​Ibid s 99(2).

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270. ​Ibid s 97(2).

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271. ​Ibid s 97(3).

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272. ​Ibid s 4.

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273. ​See also the considerations in Family Violence Protection Act 2008 (Vic) ss 62(2) and 67(2).

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274. ​Ibid s 67(2).

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275. ​Family violence orders are called different things in different states and territories. They are known as family violence intervention orders in Victoria and SA; apprehended domestic violence orders in NSW; domestic violence orders in Queensland; family violence restraining orders in WA; family violence orders in Tasmania; and domestic violence orders in the ACT and NT

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276. ​Family Violence Act 2016 (ACT) s 44A(2).

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277. ​Domestic and Family Violence Act 2007 (NT) s 27(6)(c)(iii). This provision was introduced via the Justice Legislation Amendment (Domestic and Family Violence) Act 2023 (NT). The Bill for the amending legislation initially contained a provision enabling an adult child up to the age of 24 to be included on a domestic violence order, but ultimately it wasn’t included in the final Act.

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278. ​Ibid s 82J(2).

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279. ​Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 11.

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280. ​‘Family Violence Laws’, Department of Justice Canada (Web Page, 17 May 2024) <https://www.justice.gc.ca/eng/cj-jp/fv-vf/laws-lois.html>; Canada’s family violence model is the subject of current reform efforts. For example, the Law Reform Commission of Ontario’s Improving Protection Orders project seeks to reform Ontario’s system, which comprises ‘restraining orders, peace bonds, bail release orders and undertakings, exclusive possession orders, and criminal sentences with protective conditions (like conditional sentences, probation orders, and parole orders)’. The Law Reform Commission refers to Ontario’s approach as a ‘protection order landscape’, recognising that ‘there is currently no organised system of protection orders in Ontario.’ ‘Improving Protection Orders’, Law Commission of Ontario (Web Page) <https://www.lco-cdo.org/en/our-current-projects/improving-protection-orders/>; ‘Protection Order Glossary’, Law Commission of Ontario (Web Page) <https://www.lco-cdo.org/en/our-current-projects/improving-protection-orders/protection-order-glossary/>.

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281. ​Under the Family Violence Act 2018 (NZ) a protection order applies for the benefit of any child of the applicant’s family’ and continues to apply even if a child has turned 18, so long as they continue to ‘ordinarily or periodically reside with the applicant.’ See ss 107(2) and 86. However, young people who move out of a family home must return to court to seek a variation of the order or risk a loss of protection. See: Community Law Centres o Aotearoa, ‘Who Will Be Protected by a Protection Order’, Law Manual Online (Web Page) <https://communitylaw.org.nz/community-law-manual/test/applying-for-a-protection-order-long-term-protection-against-family-violence/who-will-be-protected-by-a-protection-order/>.

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282. ​A court of record is a court whose proceedings are recorded, preserved and available as evidence of fact. As inferior courts the Magistrates’ and Children’s Courts are not considered courts of record and the Magistrates’ Court Act 1989 and Children, Youth and Families Act 2005 are silent on this issue. The report of the Protecting Victoria’s Vulnerable Children Inquiry recommended that the Children, Youth and Families Act 2005 (Vic) should be amended to confirm the status of the Children’s Court as a court of record, suggesting that it may already have that status, but that it was unclear. Victorian Government, Report of the Protecting Victoria’s Vulnerable Children Inquiry (Final Report, Department of Premier and Cabinet, January 2012) vol 1, lix, rec 65.

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283. ​‘Court Documents and Recordings’, Children’s Court of Victoria (Web Page); Magistrates’ Court of Victoria, Documents and Recordings (Web Page, 4 April 2025). A Chief Magistrate, Deputy Chief Magistrate or division head must grant a request for a recording which is made by a person who is not a party. In the Children’s Court a magistrate or the President must grant the request. Magistrates are not required to provide extensive reasons for a decision on a FVIO, including a decision about duration. Per YY v ZZ & Anor [2013] VSC 743, the FVPA “does not impose an express obligation on the court to state its reasons for a decision on an application for an FVIO” nor “its reasons for any particular part of the decision.” See also Ashworth v Wright [2025] VCC 774, an appeal in the County Court on a FVIO made in the Magistrates’ Court. In her decision, Judge Sanger observed that, while it is “desirable for a Magistrate to provide sufficient reasons” for an overall decision, a lack of reasons may not invalidate an order. Judge Sanger observed that “the fact that the Magistrates’ Court is a very busy court informs the adequacy of the reasons.” YY v ZZ & Anor [2013] VSC 743, [107]-[108]; Ashworth (a pseudonym) v Wright (a pseudonym) (Ruling) [2025] VCC 774, [64]-[65].

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284. ​Consultation 2, Stage 1 (Magistrates’ Court of Victoria).

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285. ​See Pedroni & Schanz [2020] FamCA 360 in which the Family Court of Australia considered the existence of an FVIO when making parenting orders for the care and contact of two children, aged 12 and 10. The FVIO had been made in the Magistrate’s Court prior to the parenting order hearing. The FVIO duration was 20 years for the children’s mother, but expired in relation to two children upon each of them turning 18. See also Vine & Buchanan [2015] FCCA 1333 in which the Federal Circuit Court considered the existence of an FVIO which had been made to protect a child until their 18th birthday, when assessing the children’s best interests and welfare for the purposes of parenting arrangements under the Family Law Act 1975 (Cth).

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286. ​See OP v XY [2020] VSC 754 in which the Magistrates’ Court had granted a 2-year FVIO for an adult AFM. On de novo appeal by the respondent OP to the County Court, the judge issued an 18-year FVIO protecting the adult AFM and her newborn child, expiring 5 months after a protected child’s 18th birthday. OP sought judicial review of the Court’s refusal to allow him to abandon the appeal, decision to include the child, and decision to increase the duration of the order, among other claims. The respondent alleged this was a jurisdictional error, including bias, unreasonableness and lack of procedural fairness. While not an argument made by parties, the Supreme Court considered whether it was within the Judge’s power to make an order which expired after the child turned 18 and determined that it was, on the basis the Magistrate may have wished to provide a grace period during which the child could seek an extension to the FVIO: at [483].

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287. ​Judicial College of Victoria, Family Violence Bench Book (Online Manual) <https://resources.judicialcollege.vic.edu.au/article/1053062>.

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288. ​Ibid ‘2.2.2.3 Commencement and duration of final intervention orders’.

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289. ​Ibid.

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290. ​Ibid ‘5.2.5 Risk indicators for family violence’; Judicial College of Victoria, Family Violence (Web Page, 14 January 2025) <https://judicialcollege.vic.edu.au/resources/family-violence>.

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291. ​Court Services Victoria, MARAM Risk Factor Guide (Guidance Sheet, 2021) <https://judicialcollege.vic.edu.au/resources/family-violence-risk-factors>. Victorian Government, Family Violence Multi-Agency Risk Assessment and Management Framework (Report, 2018) The Family Violence Multi-Agency Risk Assessment and Management Framework. The MARAM Framework is established under the Act and sets out the responsibilities which organisations and professionals have to identify, assess and manage family violence risk. Organisations which are defined in regulations and provide funded family violence services are required to align their policies, procedures, practice guidance and tools to the MARAM Framework to support a consistent response to family violence.

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292. ​Court Services Victoria, MARAM Risk Factor Guide (Guidance Sheet, 2021) <https://judicialcollege.vic.edu.au/resources/family-violence-risk-factors> In Chapter 3 we noted that a new child focused MARAM framework is in development. See: Victorian Government, ‘MARAMIS Quarterly Newsletter July-September 2024 Quarter 1 2024-25’, VIC.GOV.AU (Web Page, 4 December 2024) <https://www.vic.gov.au/sites/default/files/2024-11/MARAMIS-Quarterly-Newsletter-PDF-version-Q1-2024-25-.pdf>; The Judicial College of Victoria’s Children’s Court Bench Book and the Australasian Institute of Judicial Administration’s National Domestic and Family Violence Bench Book are similarly silent on the issue of a child ageing out of an order at 18 and duration of orders as they relate to children. The Children’s Court Bench Book refers to guidance in the Family Violence Bench Book on duration. See Australasian Institute of Judicial Administration, National Domestic and Family Violence Bench Book (2023) [7.6] Duration; Judicial College of Victoria, Children’s Court Bench Book (Online Manual) ‘22.1.4.4.2 Duration of final order’ <https://resources.judicialcollege.vic.edu.au/article/1049905>.

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293. ​Consultation 2, Stage 1 (Magistrates’ Court of Victoria).

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294. ​Representatives from Emma House (Sexual Assault & Family Violence Centre [SAFV Centre]), Consultation 4, Stage 1 (Victorian Community Legal Centres’ Rural Regional Remote Network Roundtable). Similar views were expressed in: Consultations 12, Stage 1 (Berry Street); 20, Stage 1 (Fitzroy Legal Service) and Submission 5, Stage 1 (Meli).

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295. ​Consultation 12, Stage 1 (Berry Street).

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296. ​Stage 1 ie Consultation 3, Stage 1 (Youthlaw).

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297. ​This is discussed further later in Chapter 5.

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298. ​Submission 9, Stage 1 (Women’s Legal Service Victoria and Safe and Equal).

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299. ​Representative of Gippsland Community Legal Service, Consultation 4, Stage 1 (Victorian Community Legal Centres’ Rural Regional Remote Network Roundtable).

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300. ​Submission 9, Stage 1 (Women’s Legal Service Victoria and Safe and Equal).

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301. ​Consultation 7, Stage 1 (County Court of Victoria).

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302. ​Submission 7, Stage 1 (Law Institute of Victoria).

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303. ​Submission 4, Stage 1 (Hume Riverina Community Legal Service).

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304. ​Consultation 14, Stage 1 (Women’s Legal Service Victoria).

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305. ​Submission 4, Stage 1 (Hume Riverina Community Legal Service).

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306. ​Submission 14, Stage 1 (Youthlaw).

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307. ​Submission 11, Stage 1 (Northern Community Legal Centre). Similar views were expressed by Submission 1, Stage 1 (Peninsula Community Legal Centre).

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308. ​Consultation 14, Stage 1 (Women’s Legal Service Victoria). This was also raised by a representative of Gippsland Community Legal Service, Consultation 4, Stage 1 (Victorian Community Legal Centres’ Rural Regional Remote Network Roundtable) and in Consultation 3, Stage 1 (Youthlaw).

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309. ​Representative of Westjustice, Consultation 15, Stage 1 (Roundtable with Community Legal Centres – Eastern Community Legal Centre, Peninsula Community Legal Centre, Westjustice).

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310. ​Submission 14, Stage 1 (Youthlaw).

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311. ​Representative of ARC Justice, Consultation 4, Stage 1 (Victorian Community Legal Centres’ Rural Regional Remote Network Roundtable).

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312. ​Submission 7, Stage 1 (Law Institute of Victoria). A representative of Women’s Legal Service made similar observations about the Children’s Court’s willingness to hear from children as young as 10: Consultation 14, Stage 1 (Women’s Legal Service Victoria).

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313. ​Submission 11, Stage 1 (Northern Community Legal Centre).

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314. ​Consultation 15, Stage 1 (Roundtable with Community Legal Centres – Eastern Community Legal Centre, Peninsula Community Legal Centre, Westjustice).

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315. ​Ibid. A representative of Westjustice observed that Magistrates’ Court family violence lists may include 50-60 matters in a single day. The requirement to provide reasons is discussed further earlier in Chapter 4.

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316. ​See also Submission 12, Stage 1 (Name Withheld). Consultation 1, Stage 1 (Victim Survivors’ Advisory Council (VSAC)).

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317. ​Consultations 13, Stage 1 (Centre for Multicultural Youth); 14, Stage 1 (Women’s Legal Service Victoria). Analysis of 2021 Australian Bureau of Statistics Census data conducted by AIFS found that 72% of 19-year-olds were living with a parent in 2021, compared to 63% in 2006. In 2021, 43% of young women and 51% of young men aged 20-24 lived with a parent. Mikayla Budinski, Lixia Qu and Jennifer Baxter, Young People Living with Parents (Family Trends & Transitions, Facts and Figures 2023, Australian Institute of Family Studies (AIFS), June 2023) <https://aifs.gov.au/research/facts-and-figures/young-people-living-parents>.

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318. ​Consultation 13, Stage 1 (Centre for Multicultural Youth).

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319. ​Submission 9, Stage 1 (Women’s Legal Service Victoria and Safe and Equal). Representative of ARC Justice, Consultation 4, Stage 1 (Victorian Community Legal Centres’ Rural Regional Remote Network Roundtable).

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320. ​See Isaac’s case study referred to earlier in this chapter. Submission 12, Stage 1 (Name Withheld).

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321. ​Consultation 9, Stage 1 (Victoria Police). Victoria Police note the issue is more pronounced when the AFM is not in attendance.

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322. ​Representative of Peninsula Community Legal Centre, Consultation 15, Stage 1 (Roundtable with Community Legal Centres – Eastern Community Legal Centre, Peninsula Community Legal Centre, Westjustice). For explanations of the terms, ‘systems abuse’ and ‘victim survivor’ see the Glossary.

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323. ​Consultation 9, Stage 1 (Victoria Police).

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324. ​Submission 12, Stage 1 (Name Withheld).

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325. ​Consultation 11, Stage 1 (Melbourne City Mission with Quantum Support Services Gippsland and the Amplify Family Violence Program) 10.

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326. ​Consultations 15, Stage 1 (Roundtable with Community Legal Centres – Eastern Community Legal Centre, Peninsula Community Legal Centre, Westjustice); 3, Stage 1 (Youthlaw); 7, Stage 1 (County Court of Victoria). Submission 3, Stage 1 (Victorian Aboriginal Legal Service).

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327. ​Submissions 3, Stage 1 (Victorian Aboriginal Legal Service); 4, Stage 1 (Hume Riverina Community Legal Service). Consultation 3, Stage 1 (Youthlaw); Representatives from Westjustice and Peninsula Community Legal Centre, Consultation 15, Stage 1 (Roundtable with Community Legal Centres – Eastern Community Legal Centre, Peninsula Community Legal Centre, Westjustice).

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328. ​Submission 3, Stage 1 (Victorian Aboriginal Legal Service). Similar views were expressed by a representative of Westjustice, Consultation 15, Stage 1 (Roundtable with Community Legal Centres – Eastern Community Legal Centre, Peninsula Community Legal Centre, Westjustice).

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329. ​Consultation 3, Stage 1 (Youthlaw).

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330. ​A representative of Melbourne City Mission Group. Consultation 11, Stage 1 (Melbourne City Mission with Quantum Support Services Gippsland and the Amplify Family Violence Program). Also Consultation 3, Stage 1 (Youthlaw) Youthlaw also observed that there may be cases in which family violence is multidirectional, and a young person may wish to seek protection against an adult affected family member and revocation of an order against a respondent.

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331. ​Consultation 11, Stage 1 (Melbourne City Mission with Quantum Support Services Gippsland and the Amplify Family Violence Program).

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332. ​Submission 14, Stage 1 (Youthlaw).

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333. ​See Family Law Act 1975 (Cth) pt VII-Children. Section 65H(1)(a) provides that a parenting order must not be made for a child who is 18 or over, and under s 65H(2) a parenting order stops being in force when a child turns 18, marries, or enters a de facto relationship.

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334. ​Representative of ARC Justice, Consultation 4, Stage 1 (Victorian Community Legal Centres’ Rural Regional Remote Network Roundtable).

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335. ​Consultation 3, Stage 1 (Youthlaw).

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336. ​Consultation 5 (Community Legal Centre Rural, Regional and Remote Network).

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337. ​Submission 9, Stage 1 (Women’s Legal Service Victoria and Safe and Equal).

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338. ​Consultation 9, Stage 1 (Victoria Police). Practice guidance was issued to prosecutors in May 2024 to clarify Victoria Police’s position that an order remains in force until a final order is revoked or set aside on appeal. A revocation or appeal is required to set aside a final FVIO. The court has no power to initiate a revocation on their own motion and as a result, given the Act is silent on the matter, it is Victoria Police position that the order continues. Information provided to the Commission by Victoria Police, 10 July 2025. See also s 99 of the Act and L v L [2016] VSC 182, in which the Supreme Court of Victoria confirmed that the court has no own motion power of revocation under the Act.

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339. ​Ibid.

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340. ​Consultation 14, Stage 1 (Women’s Legal Service Victoria); Similar views were expressed in: Consultations 4, Stage 1 (Victorian Community Legal Centres’ Rural Regional Remote Network Roundtable), 15, Stage 1 (Roundtable with Community Legal Centres – Eastern Community Legal Centre, Peninsula Community Legal Centre, Westjustice).

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341. ​Submission 1, Stage 1 (Peninsula Community Legal Centre). Representatives from Hume Riverina Community Legal Service and Gippsland Community Legal Service, Consultation 4, Stage 1 (Victorian Community Legal Centres’ Rural Regional Remote Network Roundtable). Representatives of Westjustice, Consultation 15, Stage 1 (Roundtable with Community Legal Centres – Eastern Community Legal Centre, Peninsula Community Legal Centre, Westjustice).

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342. ​Submission 14, Stage 1 (Youthlaw). A representative of Hume Riverina Community Legal Service, Consultation 4, Stage 1 (Victorian Community Legal Centres’ Rural Regional Remote Network Roundtable).

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343. ​Consultation 15, Stage 1 (Roundtable with Community Legal Centres – Eastern Community Legal Centre, Peninsula Community Legal Centre, Westjustice).

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344. ​Ibid; Under s 45(d) of the Family Violence Protection Act 2008 (Vic) a parent of a child may apply for an order on their behalf. If the affected family member is an adult, they must provide written consent for another person to apply on their behalf. See also the discussion at Chapter 3.

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345. ​Submission 14, Stage 1 (Youthlaw). Emphasis added.

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346. ​Consultation 7, Stage 1 (County Court of Victoria).

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347. ​Submission 14, Stage 1 (Youthlaw). United Nations, Convention on the Rights of the Child (2 September 1990, Adopted 20 November 1989 No GA Res 44/25) art 12 <https://www.unicef.org.au/united-nations-convention-on-the-rights-of-the-child>.​

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348. ​Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2008, 2642–3 (Robert Hulls, Attorney-General); Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 5, 7, 8, 17.

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