Below are example submissions you can utilise: # Duration of Order ^989ad6 In accordance with [[Section 97 - Court may specify period for which order in force|s. 97 FVPA]], duration is ultimately a matter for the Court. However, [[Section 97 - Court may specify period for which order in force|s. 97]] does state that the Court must take into account that the safety of the protected person is paramount and both the AFM & Applicant's view regarding risk and duration of final order. Consider the risk factors to add weight to submissions, e.g. L17, how many incidents, criminal proceeding, children present [[Section 97 - Court may specify period for which order in force|s. 97]] also indicates Court **may** take into account any matters raised by RESP that are relevant to duration. Given it is a **may**, Court should give more weight to AFM and Applicant's view. # Taking child off IVO after turning 18 ^3df32f [[Section 99 - Duration of order]] establishes the default duration of a final Family Violence Intervention Order(hereafter, ‘FVIVO’). Specifically, that a FVIVO will remain in force until it has been revoked, set aside on appeal or expired. - The act remains silent on exact duration. As per L v L [2016] VSC 182, when an application to revoke has not been made by a party, the Court does not have the power to remove an AFM from the FVIVO. Therefore, an application to revoke is required to remove an AFM from the FVIVO, ensuring due process and safeguarding against the risk of future family violence. Due to how S.99 of the FVPA operates, if an AFM turns 18 while an FV IVO is in place, the AFM will remain on the Order until the FVIVO expires, is revoked or is set aside on appeal. Supreme Court Case: OP v XY (2020) VSC 754 The relevant paragraphs to look at are [340-342] and [487-496]. In short, the duration of a final order is governed by ss 97 & 99FVPA. In this particular matter the court extended the final order to expire 5 months after the child AFM turned 18. At [496] the Supreme Court concluded that if this was an error by the Magistrate, it is neither a jurisdictional error or an error that warrants a grant of relief. Nothing in the FVPA says once a child AFM turns 18, they cannot remain on the order. To have this view I think in incongruous to the purposes of the FVPA. If there’s any ambiguity, my argument should be favoured as it aligns with the purposes of the FVPA. # Seeking leave to WID without notice of withdrawal ^7886dd NBT v Magistrates’ Court of Victoria [2023] VSC 461 paragraphs [36]and [46] simply states Rule 4.08 Magistrates’ Court (Family Violence Protection) Rules 2018 (Vic) (hereafter, ‘Magistrate Court Rules (FVPA)’). In MN v OP [2017] VSC 733 at paragraphs [138] and [139] the Court commented Rule 4.08 is open to interpretation and “there is a public interest in disputes arising from allegations concerning family violence to be ended speedily when applicants do not wish to pursue family violence orders”. At paragraph [139] the Court concluded the Magistrate did not err in allowing the Applicant to withdraw the application in the absence of the RESP. Therefore, based on this case, it is open to the Court to grant our Application for Leave to withdraw the IVO application. # Finalising IVO when App is contested ^fd1026 - ? What section does HH rely upon to give power to finalise matter? - ! Cannot be s. 75 FVPA, only references conditions on final order. - ! Cannot be s. 74 FVPA, not a contested hearing today. Clarify what section HH seeks to rely upon to give the jurisdictional power to finalise the matter? (Note: it cannot be S.75 of the FVPA as that just references what conditions can be in place for a final Order. It cannot be S.74 of the FVPA as today is not a contested hearing. It cannot be S.61 of FVPA as Police being a party are not consenting to the matter finalising today – refer to definition of a ‘party’ if needed). The narrative is serious, and the Police position is that a (e.g. safe contact Order) would not address our safety concerns for the adult AFM or the children. For the Court to finalise as (e.g. safe contact) for the adult AFM (or the children, depending upon if the Magistrate is considering granting split Orders), the Court needs to be satisfied as per S.78(5) of the FVPA that the proposed resolution will not pose a risk to either the adult AFM or the children. Police say it will. One of our duties as a Prosecutor is to prevent the Court from falling into appealable error. Our reading of S.61 of the FVPA is if the matter is finalised today against our wishes, it is grounds for appeal. If it is noted that S.61 of the FVPA is ambiguous, it must be interpreted on the plain English meaning of the words and in accordance with the purposes of the Act (S.1 of the FVPA). As our interpretation is consistent with the purposes of the Act, our interpretation should be favoured. # Seeking Interim when FVSN and RESP not consenting ^486609 This a Family Violence Safety Notice and as per S.53(1)(c) of the FVPA, the onus is on the party seeking to persuade the court the conditions on the safety notice, should not be replicated in an IIVO. The Court needs to be satisfied on the balance of probabilities that there is reason to justify discontinuing the protection until a final decision has been made. S.53 (1)(c) FVPA needs to be read with S.53 (1)(a) FVPA (discussed below). Example submission: The opposing party has not been able to satisfy the court on the balance of probabilities that there are reasons to justify the discontinuance of the conditions of the safety notice. The police application is in line with S.53 (1)(a) FVPA in that an IIVO is required for the personal protection of the AFM and/or their property. The police application is in line with the purposes of the FVPA, s.1, namely maximise safety for the AFM and to prevent and reduce FV to the greatest extent possible. # Seeking Interim from App Warrant or App Summons ^73a58a S.53(1)(a) of the FVPA applies when an Application and Summons or an Application and Warrant has been brought before the Court. This section outlines the test, that being on the balance of probabilities. The Court needs to be satisfied that upon this balance, the proposed Order will ensure the safety of the AFM, preserve property and protect both the AFM and any children on the Order pending a final decision. This is a low threshold and deliberately so as this is a protective jurisdiction. The police application is in line with S.53 (1)(a) FVPA in that an IIVO is required for the personal protection of the AFM and/or their property. The police application is in line with the purposes of the FVPA, s.1, namely maximise safety for the AFM and to prevent and reduce FV to the greatest extent possible. # Interim when previously refused ^1bfa34 If an interim is refused at a mention, however, the application remains on foot. S53 (4) supports that: The court may make an interim order at any time after the making of an application for a family violence intervention order and before the final decision about the application is made and may do so whether or not the court has previously made or refused to make an interim order. Submissions per above can further be made that this supports the purpose of the FVPA S1. # Substituting Applicant ^39bc70 The Magistrate Court Rules (FVPA), 15.03 provide a statutory basis for substitution of applicant. The case of NBT V Magistrates’ Court of Victoria [2023] VSC 461, specifically paragraph [77] where it is noted that: >‘however, I can discern nothing in the words or the scheme and purpose of the FVP Act which requires that a police officer who initiated an application remain in the applicant role in the proceeding.’ This then leads to paragraph [84] where there are further discussions and ultimately at paragraph [94] of the case where their Honour states: >‘in summary, I consider that there is no binding authority on the issue of a substitution power in the FVP Act or Rules. As such, it is open to me to conclude that there is power to allow an amendment to an FVIO application by the substitution of one party in a proceeding (the police officer party) for another (the AFM) and that this power is grounded in r 15.03.’ This provides the Court with authority to substitute an applicant. # Against striking out police application ^f60df8 In accordance with Rule 6.02 of the Magistrate Court Rules (FVPA), in order for an application to be struck out, it would need to be: - Scandalous, frivolous or vexatious - May prejudice, embarrass or delay the fair hearing of the proceedings - Is otherwise an abuse of the process Prosecutions submit that the Police application does not align with any of these things. - Police hold a significant safety concern for the AFM given: - Nature of the incident - Any FV history between parties - Any driving factors that have not been addressed (alcohol, drugs, mental health) Police are within their power to seek an interim Order given these concerns and submit that our position aligns with the purpose of the act in S.1 of the FVPA to maximise the safety of the AFM and prevent and reduce FV to the greatest extent possible.