Children's Court (Family Violence Protection) and (Personal Safety Intervention Orders) Amendment Rules 2020 (Vic)
Children's Court (Family Violence Protection) and (Personal Safety Intervention Orders) Amendment Rules 2020
S.R. No. 10/2020
TABLE OF PROVISIONS
Rule Page
Part 1—Preliminary
1Object
2Authorising provisions
3Commencement
Part 2—Amendment of Children's Court (Family Violence Protection) Rules 2018
4Affidavit by illiterate, blind or incapacitated person
5Affidavit by 2 or more deponents
6Alterations
7Annexures and exhibits
8Affidavit sworn or affirmed before party
9Rule 11.01 substituted
10Form 1AA substituted
11Form 1AB substituted
12Form 1 substituted
Part 3—Amendment of Children's Court (Personal Safety Intervention Orders) Rules 2011
13Definitions
14Legal representation
15Certificates may be filed by facsimile or other electronic communication
16Form of affidavit
17Affidavit by illiterate, blind or incapacitated person
18Affidavit by two or more deponents
19Alterations
20Annexures and exhibits
21Affidavit sworn or affirmed before party
22Rule 11.01 substituted
23Rule 11.03 revoked
24New Order 15 inserted
25Form 1 substituted
26New Forms 3 to 13 inserted
═════════════
Endnotes
STATUTORY RULES 2020
S.R. No. 10/2020
Family Violence Protection Act 2008
Personal Safety Intervention Orders Act 2010
Children's Court (Family Violence Protection) and (Personal Safety Intervention Orders) Amendment Rules 2020
The President of the Children's Court together with 2 magistrates for that Court jointly make the following Rules:
Part 1—Preliminary
1Object
The object of these Rules is—
(a)to amend the Children's Court (Family Violence Protection) Rules 2018 to incorporate changes arising out of—
(i)the enactment of the Oaths and Affirmations Act 2018; and
(ii)recommendations made by the Royal Commission into Family Violence and Judge Gray following Judge Gray's investigation into the death of Luke Batty; and
(b)to amend the Children's Court (Personal Safety Intervention Orders) Rules 2011—
(i)to incorporate changes arising out of the enactment of the Oaths and Affirmations Act 2018; and
(ii)to incorporate changes arising out of amendments made by the Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018; and
(iii)to provide for matters in relation to proceedings under the Vexatious Proceedings Act 2014.
2Authorising provisions
These Rules are made under section 210 of the Family Violence Protection Act 2008, section 184 of the Personal Safety Intervention Orders Act 2010, section 88 of the Vexatious Proceedings Act 2014, section 588 of the Children, Youth and Families Act 2005 and all other enabling powers.
3Commencement
These Rules come into operation on 1 March 2020.
Part 2—Amendment of Children's Court (Family Violence Protection) Rules 2018
4Affidavit by illiterate, blind or incapacitated person
In Rule 7.02(1) of the Children's Court (Family Violence Protection) Rules 2018[1], after "sworn" insert "or affirmed".
5Affidavit by 2 or more deponents
In Rule 7.04 of the Children's Court (Family Violence Protection) Rules 2018, after "sworn" (where twice occurring) insert "or affirmed".
6Alterations
In Rule 7.05 of the Children's Court (Family Violence Protection) Rules 2018, after "sworn" insert "or affirmed".
7Annexures and exhibits
In Rule 7.06(2) of the Children's Court (Family Violence Protection) Rules 2018, after "sworn" insert "or affirmed".
8Affidavit sworn or affirmed before party
(1)In the heading to Rule 7.10 of the Children's Court (Family Violence Protection) Rules 2018, after "sworn" insert "or affirmed".
(2)In Rule 7.10 of the Children's Court (Family Violence Protection) Rules 2018, after "sworn" insert "or affirmed".
9Rule 11.01 substituted
For Rule 11.01 of the Children's Court (Family Violence Protection) Rules 2018 substitute—
"11.01 Filing of applications
(1)For an applicant other than a police officer, an application under the Act must be made by filing the application at the proper venue of the Court.
(2)If the applicant is a police officer, an application under the Act must be made—
(a)by filing the application at the proper venue of the Court; or
(b)by facsimile transmission or other electronic communication to the proper venue of the Court between the hours of 9 a.m. and 5 p.m. on a working day; or
(c)in the case of an application for, or a variation of, a family violence intervention order in which an interim order is sought, by facsimile transmission or other electronic communication to the Children's Court of Victoria After Hours Service—
(i)before 9 a.m. or after 5 p.m. on a working day; or
(ii)at any time on a Saturday, a Sunday or a public holiday.
(3)An application made in accordance with section 20 is to be made to the Children's Court of Victoria After Hours Service.
Note
Proper venue is defined in section 3(1) of the Children, Youth and Families Act 2005.".
10Form 1AA substituted
For Form 1AA of the Children's Court (Family Violence Protection) Rules 2018 substitute—
"Form 1AA—Explanation of interim family violence intervention order
Rule 10.02
INFORMATION SHEET—INTERIM INTERVENTION ORDER
An Interim Family Violence Intervention Order has been made against "the respondent".
The person this Order protects is called "the protected person". Children can be included as protected people because being around family violence can cause children serious harm.
1.The Court has made this Interim Order to stop harmful behaviour and protect people. The law gives the Court the power to make this Order because the community values safe and respectful relationships.
2.This Interim Order makes rules (conditions) for the respondent to obey. It says the respondent must not behave in certain ways, be around certain people or go to certain places.
3.If the rules in this Interim Order are broken, it is a crime and the respondent may be arrested and charged. The respondent could go to prison or receive another kind of penalty.
4.Only the Court can change ("vary") or cancel ("revoke") the Order.
The respondent must not pressure the protected person to change or cancel the Order.
It is a breach of the Interim Order to do so.
5.This Interim Order is made against the respondent, so the respondent must obey it. Even if someone asks the respondent to do something that breaks the rules in the Interim Order, the respondent must still obey the Order.
6.The respondent must not use someone else, including family, to do things on their behalf that the Interim Order says they cannot do.
7.If the protected person and respondent have children this Interim Order may affect whether the respondent can spend time with them. Speak to a lawyer about what the Order says.
8.If you have orders from another court, this Interim Order may affect them. Speak to a lawyer about what the Interim Order says.
9.If the respondent has firearms or weapons, they may not be allowed to keep them. Check to see what the Interim Order says.
10. This Interim Order will say how long it lasts and when you may need to return to court. Check to see what it says. The interim Order is in place until a court can decide on whether to make a Final Order.
11. Any Intervention Order is recognised throughout Australia.
Read the Interim Order more than once and get advice about anything you don't understand.
Police cannot give you legal advice.
For more information:
Victoria Legal Aid or 1300 792 387
Victorian Aboriginal Legal Service or 1800 064 865
Djirra or 1800 105 303
Men's Referral Service or 1300 766 491
FV support and information or 1800 015 188
Children, including unborn babies, can be harmed by family violence. This includes:
· Children knowing that it is happening even if they are not there at the time.
· Children seeing damaged property or injured people.
· Children knowing one parent is afraid of, or controlled by, the other.
· Children knowing that the family is controlled by one parent's behaviour and moods.
· Children intervening to protect a parent or calm one down.
Family violence includes a wide range of behaviours. Below are some examples.
| Behaviour | Some examples |
| Physical violence | · Hitting, punching, pushing, pulling, kicking, choking |
| Sexual violence | · Pressuring someone into sexual acts; rape · Pressuring them to watch or join in pornography |
| Property damage | · Breaking or damaging someone's property or belongings, including jointly owned property or belongings |
| Economic violence | · Controlling someone's money against their will · Forcing someone to pay or give money to others or taking money · Stopping someone from working · Forcing or tricking someone to take on debts · Using dowry or family finance issues to control someone |
| Emotional, social or psychological violence | · Making someone feel that no one cares or will help them · Name calling or put downs · Making someone fear for their safety · Taunting someone about sexuality or gender identity · Sending abusive messages via phone, email or social media or monitoring what someone does online · Harming or killing pets |
| Threats | · To harm people (including themselves), property, or pets · To take children away or to have them taken by others, such as immigration authorities or Child Protection Services · To disclose someone's sexuality or gender identity · To post or send images held on a phone or device · To use family members to add pressure · To get someone deported |
| Coercing, controlling, dominating or terrorising | · Intimidating, bullying, frightening · Controlling where someone goes, what they wear or eat, when they sleep, who they can see · Stopping someone from seeing or speaking to others · Withholding mobility aids, disability equipment or medication · Forcing someone to marry without their consent |
".
11Form 1AB substituted
For Form 1AB of the Children's Court (Family Violence Protection) Rules 2018 substitute—
"Form 1AB—Explanation of final family violence intervention order
Rule 10.03
INFORMATION SHEET—FINAL INTERVENTION ORDER
A Final Family Violence Intervention Order has been made against "the respondent".
The person this Final Order protects is called "the protected person". Children can be included as protected people because being around family violence can cause children serious harm.
1.The Court has made this Final Order to stop harmful behaviour and protect people. The law gives the Court the power to make this Order because the community values safe and respectful relationships.
2.This Final Order makes rules (conditions) for the respondent to obey. It says the respondent must not behave in certain ways, be around certain people or go to certain places.
3.If the rules in this Final Order are broken, it is a crime and the respondent may be arrested and charged. The respondent could go to prison or receive another kind of penalty.
4.Only the Court can change ("vary") or cancel ("revoke") the Order.
The respondent must not pressure the protected person to change or cancel the Order.
It is a breach of the Final Order to do so.
5.This Final Order is made against the respondent, so the respondent must obey it. Even if someone asks the respondent to do something that breaks the rules in the Final Order, the respondent must still obey the Order.
6.The respondent must not use someone else, including family, to do things on their behalf that the Final Order says they cannot do.
7.If the protected person and respondent have children this Final Order may affect whether the respondent can spend time with them. Speak to a lawyer about what the Order says.
8.If you have orders from another court, this Final Order may affect them. Speak to a lawyer about what the Final Order says.
9.If the respondent has firearms or weapons, they may not be allowed to keep them. Check to see what the Final Order says.
10. This Final Order will say how long it lasts and when you may need to return to court. Check to see what it says.
11. Any Final Order is recognised throughout Australia.
Read the Final Order more than once and get advice about anything you don't understand.
Police cannot give you legal advice.
For more information:
Victoria Legal Aid or 1300 792 387
Victorian Aboriginal Legal Service or 1800 064 865
Djirra or 1800 105 303
Men's Referral Service or 1300 766 491
FV support and information 1800 015 188
Children, including unborn babies, can be harmed by family violence. This includes:
· Children knowing that it is happening even if they are not there at the time.
· Children seeing damaged property or injured people.
· Children knowing one parent is afraid of, or controlled by, the other.
· Children knowing that the family is controlled by one parent's behaviour and moods.
· Children intervening to protect a parent or calm one down.
Family violence includes a wide range of behaviours. Below are some examples.
| Behaviour | Some examples |
| Physical violence | · Hitting, punching, pushing, pulling, kicking, choking |
| Sexual violence | · Pressuring someone into sexual acts; rape · Pressuring them to watch or join in pornography |
| Property damage | · Breaking or damaging someone's property or belongings, including jointly owned property or belongings |
| Economic violence | · Controlling someone's money against their will · Forcing someone to pay or give money to others or taking money · Stopping someone from working · Forcing or tricking someone to take on debts · Using dowry or family finance issues to control someone |
| Emotional, social or psychological violence | · Making someone feel that no one cares or will help them · Name calling or put downs · Making someone fear for their safety · Taunting someone about sexuality or gender identity · Sending abusive messages via phone, email or social media or monitoring what someone does online · Harming or killing pets |
| Threats | · To harm people (including themselves), property, or pets · To take children away or to have them taken by others, such as immigration authorities or Child Protection Services · To disclose someone's sexuality or gender identity · To post or send images held on a phone or device · To use family members to add pressure · To get someone deported |
| Coercing, controlling, dominating or terrorising | · Intimidating, bullying, frightening · Controlling where someone goes, what they wear or eat, when they sleep, who they can see · Stopping someone from seeing or speaking to others · Withholding mobility aids, disability equipment or medication · Forcing someone to marry without their consent |
".
12Form 1 substituted
For Form 1 of the Children's Court (Family Violence Protection) Rules 2018 substitute—
"Form 1—Application for rehearing
Rule 12.02
In the Children's Court at: [specify venue] Case No:
Applicant: [full name of applicant for rehearing]
Applicant's address:
Respondent: [full name of respondent to this application]
Respondent's address:
Protected person or person protected by the order:
Address:
APPLICATION FOR REHEARING
Details of the application you would like reheard
I (the applicant) am the respondent to an application for a family violence intervention order.
The application was made at [specify court location] on [date].
The application came to my attention on [date].
Have you previously applied for a rehearing of this application? Yes*/No*
Note: If you failed to attend at the time fixed for the hearing of the application and the application was struck out by the Court, you will require leave of the Court to make another application.
Reasons for applying for rehearing
My reason for seeking a rehearing of the application is:
£ I was not personally served with the application; or
£the application was not brought to my attention by an order for alternative service or substituted service prior to the making of the final order; or
£there are exceptional circumstances and a rehearing is fair and just.
These circumstances are: [briefly state the reasons why you did not attend the hearing of the application]
Affidavit
I [full name] of [address] *make oath/*affirm and say:
[Insert statement to be sworn or affirmed in numbered paragraphs]
The contents of this affidavit are true and correct and I make it knowing that a person making a false affidavit may be prosecuted for the offence of perjury.
*SWORN/*AFFIRMED at: [place] in the State of Victoria
ON: [date]
[Signature of person swearing or affirming the affidavit contents, to be signed in front of the authorised affidavit taker]
BEFORE ME:
[Signature of authorised affidavit taker]
ON: [date]
[Full name, statement of the capacity in which the authorised affidavit taker has the authority to take the affidavit, and personal or professional address in legible writing, typing or stamp]
A person authorised under Part 3 of the Oaths and Affirmations Act 2018 to take an affidavit.
*delete if inapplicable.".
Part 3—Amendment of Children's Court (Personal Safety Intervention Orders) Rules 2011
13Definitions
In Rule 1.05 of the Children's Court (Personal Safety Intervention Orders) Rules 2011[2]—
(a)the definition of Australian lawyer is revoked;
(b)insert the following definitions—
"barrister has the same meaning as it has in the Legal Profession Uniform Law (Victoria);
solicitor has the same meaning as it has in the Legal Profession Uniform Law (Victoria) and includes an incorporated legal practice as defined in that Law;".
14Legal representation
In Rule 1.09(3)(a) of the Children's Court (Personal Safety Intervention Orders) Rules 2011, for "an Australian lawyer" substitute "a solicitor".
15Certificates may be filed by facsimile or other electronic communication
(1)In the heading to Rule 5.04 of the Children's Court (Personal Safety Intervention Orders) Rules 2011, after "facsimile" insert "or other electronic communication".
(2)In Rule 5.04 of the Children's Court (Personal Safety Intervention Orders) Rules 2011, after "transmission" insert "or other electronic communication".
16Form of affidavit
(1)In Rule 7.01(2) and (3) of the Children's Court (Personal Safety Intervention Orders) Rules 2011—
(a)for "his or her" (where twice occurring) substitute "the deponent's";
(b)for "he or she" substitute "the deponent".
(2)In Rule 7.01(5) and (6) of the Children's Court (Personal Safety Intervention Orders) Rules 2011, after "sworn" insert "or affirmed".
(3)In Rule 7.01(7) and (8) of the Children's Court (Personal Safety Intervention Orders) Rules 2011, after "swearing" insert "or affirming".
17Affidavit by illiterate, blind or incapacitated person
(1)In Rule 7.02(1) of the Children's Court (Personal Safety Intervention Orders) Rules 2011—
(a)after "sworn" insert "or affirmed";
(b)for "or physically incapacitated he or she" substitute ", physically incapacitated or cognitively impaired the person";
(c)for paragraphs (a) and (b) substitute—
"(a)the person read the affidavit in the deponent's presence to the deponent; and
(b)the deponent seemed to the person to understand it.";
(d)paragraph (c) is revoked.
(2)For Rule 7.02(2) of the Children's Court (Personal Safety Intervention Orders) Rules 2011 substitute—
"(2)If an affidavit is made by an illiterate, blind, physically incapacitated or cognitively impaired deponent and a certificate in accordance with subrule (1) does not appear on the affidavit, it may not be used in evidence unless the Court is satisfied that the affidavit was read to the deponent.".
18Affidavit by two or more deponents
In Rule 7.04 of the Children's Court (Personal Safety Intervention Orders) Rules 2011, after "sworn" (where twice occurring) insert "or affirmed".
19Alterations
In Rule 7.05 of the Children's Court (Personal Safety Intervention Orders) Rules 2011, after "sworn" insert "or affirmed".
20Annexures and exhibits
In Rule 7.06(2) of the Children's Court (Personal Safety Intervention Orders) Rules 2011, after "sworn" insert "or affirmed".
21Affidavit sworn or affirmed before party
(1)In the heading to Rule 7.10 of the Children's Court (Personal Safety Intervention Orders) Rules 2011, after "sworn" insert "or affirmed".
(2)In Rule 7.10 of the Children's Court (Personal Safety Intervention Orders) Rules 2011, after "sworn" insert "or affirmed".
22Rule 11.01 substituted
For Rule 11.01 of the Children's Court (Personal Safety Intervention Orders) Rules 2011 substitute—
"11.01 Filing of applications
(1)For an applicant other than a police officer, an application under the Act must be made by filing the application at the proper venue of the Court.
(2)If the applicant is a police officer, an application under the Act must be made—
(a)by filing the application at the proper venue of the Court; or
(b)by facsimile transmission or other electronic communication to the proper venue of the Court between the hours of 9 a.m. and 5 p.m. on a working day; or
(c)in the case of an application for, or a variation of, a personal safety intervention order in which an interim order is sought, by facsimile transmission or other electronic communication to the Children's Court of Victoria After Hours Service—
(i)before 9 a.m. or after 5 p.m. on a working day; or
(ii)at any time on a Saturday, a Sunday or a public holiday.
Note
Proper venue is defined in section 3(1) of the Children, Youth and Families Act 2005.".
23Rule 11.03 revoked
Rule 11.03 of the Children's Court (Personal Safety Intervention Orders) Rules 2011 is revoked.
24New Order 15 inserted
After Order 14 of the Children's Court (Personal Safety Intervention Orders) Rules 2011 insert—
"ORDER 15
PROCEDURE UNDER THE VEXATIOUS PROCEEDINGS ACT 2014
PART 1—INTERPRETATION
15.01Definitions
An expression used in the Vexatious Proceedings Act 2014 has the same meaning in this Order as it has in that Act.
PART 2—APPLICATIONS AND NOTICES
15.02Applications for leave to apply for extended litigation restraint orders that relate to intervention order legislation
(1)An application under section 18(1) of the Vexatious Proceedings Act 2014 by a person referred to in section 18(1)(b) or (c) of that Act for leave to apply for an extended litigation restraint order that relates to intervention order legislation must be in Form 3.
(2)An application referred to in this Rule—
(a)must be supported by an affidavit; and
(b)must be made without notice to any person unless the Court orders otherwise.
15.03Applications for extended litigation restraint orders that relate to intervention order legislation
(1)An application under section 18(1) of the Vexatious Proceedings Act 2014 for an extended litigation restraint order that relates to intervention order legislation must be in Form 4.
(2)An application referred to in this Rule must be supported by an affidavit.
(3)In addition, a copy of the order granting leave to apply for the extended litigation restraint order must be attached to the application.
15.04Applications for acting in concert orders—intervention order legislation
(1)An application under section 34 of the Vexatious Proceedings Act 2014 for an acting in concert order must be in Form 5.
(2)An application referred to in this Rule must be supported by an affidavit.
15.05Application for leave to proceed under extended litigation restraint order in relation to intervention order legislation
An application under section 52(2) of the Vexatious Proceedings Act 2014 by a person subject to an extended litigation restraint order for leave to commence or continue a proceeding must be—
(a)in Form 6, in the case of an application to continue a proceeding in the Court; and
(b)in Form 7, in any other case.
15.06Application for leave to proceed under general litigation restraint order
An application under section 54 of the Vexatious Proceedings Act 2014 by a person subject to a general litigation restraint order for leave to commence or continue a proceeding that relates to intervention order legislation must be—
(a)in Form 8, in the case of an application to continue a proceeding; and
(b)in Form 9, in the case of an application to commence a proceeding.
15.07Notice of applications
(1)Notice required to be given by a direction of the Court under section 61(2) of the Vexatious Proceedings Act 2014 must be in Form 10.
(2)The notice must be accompanied by a copy of every order made or direction given by the Court in the application to which the notice relates.
Note
Further requirements are stated in section 61(4) of the Vexatious Proceedings Act 2014.
15.08Application for leave to apply for variation or revocation of extended litigation restraint order in relation to intervention order legislation
An application under section 65(2) of the Vexatious Proceedings Act 2014, by a person subject to an extended litigation restraint order that relates to intervention order legislation, for leave to apply to vary or revoke the order must be in Form 11.
15.09Application to vary or revoke extended litigation restraint order that relates to intervention order legislation
(1)An application under section 65(2) of the Vexatious Proceedings Act 2014, by a person subject to an extended litigation restraint order that relates to intervention order legislation, to vary or revoke the order must be in Form 12.
(2)In addition, a copy of the order granting leave to apply to vary or revoke the extended litigation restraint order must be attached to the application.
15.10Notice of application to vary or revoke litigation restraint order
(1)Notice required to be given by a direction of the Court under section 68(2) of the Vexatious Proceedings Act 2014 must be in Form 13.
(2)The notice must be accompanied by a copy of every order made or direction given by the Court in the application to which the notice relates and in the preceding leave application.
Note
Further requirements are stated in section 68(4) of the Vexatious Proceedings Act 2014.
PART 3—PROVISIONS APPLYING TO APPLICATIONS
15.11Application of Part
This Part applies to an application that is made under any of the following sections of the Vexatious Proceedings Act 2014—
(a)section 18(1);
(b)section 34 in the case where the application relates to a person who is acting in concert with a person who is subject to an extended litigation restraint order that relates to intervention order legislation.
15.12Service of applications
(1)The applicant must serve a copy of the application and a copy of any affidavit in support on every person to whom notice of the application is to be given unless otherwise provided by these Rules.
(2)The application must be served within a reasonable time before the day for hearing named in the application, and in no case later than 2 p.m. on the previous day, or where the office of the Court was closed on the day before the day for hearing, not later than 2 p.m. on the day the office was last open.
15.13Day for hearing
(1)If an application has not been served a registrar may, at the request of the party who filed it, amend the application on or before the day for hearing named in the application to name another day.
(2)The application may be amended—
(a)by a magistrate; or
(b)by a judicial registrar; or
(c)by a registrar.
(3)An application must not be amended under this Rule more than once.
15.14Adjournment
(1)Subject to section 530 of the Children, Youth and Families Act 2005, the Court may adjourn the hearing of an application on such terms as it thinks fit.
(2)The Court constituted by a registrar—
(a)may by consent order that the hearing of an application be adjourned to a particular date or for a particular time or generally, and reserve the costs of the adjournment; and
(b)must record the adjournment and any reservation of the costs by indorsement on the court file.
(3)If the hearing of an application is adjourned under subrule (2), the Court may thereafter, whether the costs of the adjournment were reserved or not, make an order in relation to the costs of or occasioned by the adjournment as it thinks fit.
15.15Absence of party to application
(1)If any person to whom an application is addressed fails to attend, the Court may hear the application if satisfied that the application was duly served.
(2)If on an application the applicant fails to attend, the Court may dismiss the application or make such other order as it thinks fit.
__________________".
25Form 1 substituted
For Form 1 of the Children's Court (Personal Safety Intervention Orders) Rules 2011 substitute—
"FORM 1
Rule 12.02
APPLICATION FOR REHEARING
In the Children's Court at: [specify venue] Case No:
Applicant: [full name of applicant for rehearing]
Applicant's address:
Respondent: [full name of respondent to this application]
Respondent's address:
Protected person or person protected by the order:
Address:
Details of the application you would like reheard
I (the applicant) am the respondent to an application:
£ for a final personal safety intervention order
£ for an order declaring me to be a vexatious litigant
The application was made at [specify court location] on [date].
Have you previously applied for a rehearing of this application? Yes/No*
Note: If you were granted a rehearing, and that application was struck out by the Court, you will require leave of the Court to make another application.
Reasons for applying for rehearing
My reason for seeking a rehearing of the application is:
£ I was not personally served with the application
£the application was not brought to my attention by an order for substituted service
£there are exceptional circumstances and a rehearing is fair and just
These circumstances are: [briefly state the reasons why you did not attend the hearing of the application]
Affidavit
I [full name] of [address] *make oath/*affirm and say:
[Insert statement to be sworn or affirmed in numbered paragraphs]
The contents of this affidavit are true and correct and I make it knowing that a person making a false affidavit may be prosecuted for the offence of perjury.
*SWORN/*AFFIRMED at: [place] in the State of Victoria
ON: [date]
[Signature of person swearing or affirming the affidavit contents, to be signed in front of the authorised affidavit taker]
BEFORE ME:
[Signature of authorised affidavit taker]
ON: [date]
[Full name, statement of the capacity in which the authorised affidavit taker has the authority to take the affidavit, and personal or professional address in legible writing, typing or stamp]
A person authorised under Part 3 of the Oaths and Affirmations Act 2018 to take an affidavit.
*delete if inapplicable
__________________".
26New Forms 3 to 13 inserted
After Form 2 of the Children's Court (Personal Safety Intervention Orders) Rules 2011 insert—
"__________________
FORM 3
Rule 15.02
*[heading as in Form 5A of the Magistrates' Court General Civil Procedure Rules 2010]/*[heading in accordance with Rule 27.02 of those Rules]
APPLICATION FOR LEAVE TO APPLY FOR EXTENDED LITIGATION RESTRAINT ORDER
(Section 18(1) of the Vexatious Proceedings Act 2014)
I, [name], apply under section 18(1) of the Vexatious Proceedings Act 2014 for leave to apply for an extended litigation restraint order.
In accordance with section 18(3) of that Act, I contend that there is merit in the application and that the making of the application would not be an abuse of process on the basis of the following grounds: [set out the grounds in numbered paragraphs].
ORDERS SOUGHT
The applicant seeks—
1.leave to apply for an extended litigation restraint order;
2.[set out any other orders sought].
ACCOMPANYING AFFIDAVIT
This application is accompanied by an affidavit in support of the order(s) sought in the application.
FILED [insert date].
This application was filed—
*(a)by the applicant in person.
*(b)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].
*(c)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].
The address of the applicant is:
The address for service of the applicant is:
Date:
Signed
*delete if inapplicable
__________________
FORM 4
Rule 15.03
*[heading as in Form 5A of the Magistrates' Court General Civil Procedure Rules 2010]/*[heading in accordance with Rule 27.02 of those Rules]
APPLICATION FOR EXTENDED LITIGATION RESTRAINT ORDER
(Section 18(1) of the Vexatious Proceedings Act 2014)
I, [name], apply for an extended litigation restraint order under section 18(1) of the Vexatious Proceedings Act 2014.
Leave was granted to me to apply by order of [insert name of Court] on [insert date]. Attached to this application is a copy of that order.
I contend that the order should be made on the following grounds: [set out the grounds in numbered paragraphs].
ORDERS SOUGHT
The applicant seeks—
1.an extended litigation restraint order;
2.[set out any other orders sought].
SUMMONS
To: [identify each party or other person to whom the application is addressed and state address of each person not a party].
You are summoned to attend before the Court on the hearing of the application for the orders sought.
The application will be heard in the Children's Court of Victoria at [insert venue] on [insert date ] at [insert time] a.m. [or p.m.] or so soon afterwards as the business of the Court allows.
ACCOMPANYING AFFIDAVIT
This application is accompanied by an affidavit in support of the order(s) sought in the application.
FILED [insert date].
This application was filed—
*(a)by the applicant in person.
*(b)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].
*(c)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].
The address of the applicant is:
The address for service of the applicant is:
Date:
Signed
*delete if inapplicable
__________________
FORM 5
Rule 15.04
*[heading as in Form 5A of the Magistrates' Court General Civil Procedure Rules 2010]/*[heading in accordance with Rule 27.02 of those Rules]
APPLICATION FOR ACTING IN CONCERT ORDER
(Section 34 of the Vexatious Proceedings Act 2014)
I, [name], am a person referred to in section *34(a)/*34(b) of the Vexatious Proceedings Act 2014 and apply under that section for an acting in concert order.
I contend that the order should be made on the following grounds: [set out the grounds in numbered paragraphs].
ORDERS SOUGHT
The applicant seeks—
1.an acting in concert order;
2.[set out any other orders sought].
SUMMONS
To: [identify each party or other person to whom the application is addressed and state address of each person not a party].
You are summoned to attend before the Court on the hearing of the application for the orders sought.
The application will be heard in the Children's Court of Victoria at [insert venue] on [insert date] at [insert time] a.m. [or p.m.] or so soon afterwards as the business of the Court allows.
ACCOMPANYING AFFIDAVIT
This application is accompanied by an affidavit in support of the order(s) sought in the application.
FILED [insert date].
This application was filed—
*(a)by the applicant in person.
*(b)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].
*(c)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].
The address of the applicant is:
The address for service of the applicant is:
Date:
Signed
*delete if inapplicable
__________________
FORM 6
Rule 15.05(a)
*[heading as in Form 5A of the Magistrates' Court General Civil Procedure Rules 2010]/*[heading in accordance with Rule 27.02 of those Rules]
APPLICATION FOR LEAVE TO CONTINUE PROCEEDING BY PERSON SUBJECT TO EXTENDED LITIGATION RESTRAINT ORDER
(Section 52(2) of the Vexatious Proceedings Act 2014)
I, [name], a person subject to an extended litigation restraint order that relates to intervention order legislation [identify the relevant order], apply under section 52(2) of the Vexatious Proceedings Act 2014 for leave to continue a proceeding to which the order relates.
In accordance with section 53 of that Act, I contend that the proceeding is not a vexatious proceeding and that there are reasonable grounds for the proceeding, namely that: [set out the grounds in numbered paragraphs].
ORDERS SOUGHT
The applicant seeks—
1.leave to continue this proceeding;
2.[set out any other orders sought].
ACCOMPANYING AFFIDAVIT
This application is accompanied by an affidavit disclosing the details required under section 56 of the Vexatious Proceedings Act 2014 as follows—
(a)details of each application for leave to proceed made by the applicant;
(b)details of each application for leave to commence or continue a proceeding made by the applicant under section 21 of the Supreme Court Act 1986, as in force immediately before its repeal;
(c)details of each interlocutory application made or proceeding commenced or conducted by the applicant—
(i)that is a vexatious application or a vexatious proceeding (as defined in the Act); or
(ii)which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;
(d)an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) (if any);
(e)all other facts material to the application, whether in support of or adverse to the application, which are known to the applicant.
FILED [insert date].
This application was filed—
*(a)by the applicant in person.
*(b)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].
*(c)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].
The address of the applicant is:
The address for service of the applicant is:
Date:
Signed
*delete if inapplicable
__________________
FORM 7
Rule 15.05(b)
IN THE CHILDREN'S COURT
OF VICTORIA
20 No.
AT
IN THE MATTER of an application under section 52(2) of the Vexatious Proceedings Act 2014.
APPLICATION FOR LEAVE TO COMMENCE PROCEEDING BY PERSON SUBJECT TO EXTENDED LITIGATION RESTRAINT ORDER
I, [name], a person subject to an extended litigation restraint order that relates to intervention order legislation [identify the relevant order], apply under section 52(2) of the Vexatious Proceedings Act 2014 for leave to commence a proceeding to which the order relates.
In accordance with section 53 of that Act, I contend that the proceeding is not a vexatious proceeding and that there are reasonable grounds for the proceeding, namely that: [set out the grounds in numbered paragraphs].
ORDERS SOUGHT
The applicant seeks—
1.leave to commence a proceeding, namely, [set out full details of proceeding for which leave is sought, including the names and addresses of all proposed parties];
2.[set out any other orders sought].
ACCOMPANYING AFFIDAVIT
This application is accompanied by an affidavit disclosing the details required under section 56 of the Vexatious Proceedings Act 2014 as follows—
(a)details of each application for leave to proceed made by the applicant;
(b)details of each application for leave to commence or continue a proceeding made by the applicant under section 21 of the Supreme Court Act 1986, as in force immediately before its repeal;
(c)details of each interlocutory application made or proceeding commenced or conducted by the applicant—
(i)that is a vexatious application or a vexatious proceeding (as defined in the Act); or
(ii)which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;
(d)an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) (if any);
(e)all other facts material to the application, whether in support of or adverse to the application, which are known to the applicant.
FILED [insert date].
This application was filed—
*(a)by the applicant in person.
*(b)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].
*(c)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].
The address of the applicant is:
The address for service of the applicant is:
Date:
Signed
*delete if inapplicable
__________________
FORM 8
Rule 15.06(a)
*[heading as in Form 5A of the Magistrates' Court General Civil Procedure Rules 2010]/*[heading in accordance with Rule 27.02 of those Rules]
APPLICATION FOR LEAVE TO CONTINUE PROCEEDING BY PERSON SUBJECT TO GENERAL LITIGATION RESTRAINT ORDER
(Section 54 of the Vexatious Proceedings Act 2014)
I, [name], a person subject to a general litigation restraint order [identify the relevant order], apply under section 54 of the Vexatious Proceedings Act 2014 for leave to continue *this proceeding/*a proceeding, namely [identify relevant proceeding].
In accordance with section 55 of that Act, I contend that *this proceeding/
*the proceeding is not a vexatious proceeding and that there are reasonable grounds for the proceeding, namely that: [set out the grounds in numbered paragraphs].
ORDERS SOUGHT
The applicant seeks—
1.leave to continue *this proceeding/*a proceeding, namely [identify the proceeding];
2.[set out any other orders sought].
ACCOMPANYING AFFIDAVIT
This application is accompanied by an affidavit disclosing the details required under section 56 of the Vexatious Proceedings Act 2014 as follows—
(a)details of each application for leave to proceed made by the applicant;
(b)details of each application for leave to commence or continue a proceeding made by the applicant under section 21 of the Supreme Court Act 1986, as in force immediately before its repeal;
(c)details of each interlocutory application made or proceeding commenced or conducted by the applicant—
(i)that is a vexatious application or a vexatious proceeding (as defined in the Act); or
(ii)which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;
(d)an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) (if any);
(e)all other facts material to the application, whether in support of or adverse to the application, which are known to the applicant.
FILED [insert date].
This application was filed—
*(a)by the applicant in person.
*(b)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].
*(c)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].
The address of the applicant is:
The address for service of the applicant is:
Date:
Signed
*delete if inapplicable
__________________
FORM 9
Rule 15.06(b)
IN THE CHILDREN'S COURT
OF VICTORIA
20 No.
AT
IN THE MATTER of an application under section 54 of the Vexatious Proceedings Act 2014.
APPLICATION FOR LEAVE TO COMMENCE PROCEEDING BY PERSON SUBJECT TO GENERAL LITIGATION RESTRAINT ORDER
I, [name], a person subject to a general litigation restraint order [identify the relevant order], apply under section 54 of the Vexatious Proceedings Act 2014 for leave to commence a proceeding.
In accordance with section 55 of that Act, I contend that the proposed proceeding would not be a vexatious proceeding and that there are reasonable grounds for the proposed proceeding, namely that: [set out the grounds in numbered paragraphs].
ORDERS SOUGHT
The applicant seeks—
1.leave to commence a proceeding, namely, [set out full details of proposed proceeding for which leave is sought, including the names and addresses of all proposed parties];
2.[set out any other orders sought].
ACCOMPANYING AFFIDAVIT
This application is accompanied by an affidavit disclosing the details required under section 56 of the Vexatious Proceedings Act 2014 as follows—
(a)details of each application for leave to proceed made by the applicant;
(b)details of each application for leave to commence or continue a proceeding made by the applicant under section 21 of the Supreme Court Act 1986, as in force immediately before its repeal;
(c)details of each interlocutory application made or proceeding commenced or conducted by the applicant—
(i)that is a vexatious application or a vexatious proceeding (as defined in the Act); or
(ii)which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;
(d)an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) (if any);
(e)all other facts material to the application, whether in support of or adverse to the application, which are known to the applicant.
FILED [insert date].
This application was filed—
*(a)by the applicant in person.
*(b)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].
*(c)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].
The address of the applicant is:
The address for service of the applicant is:
Date:
Signed
*delete if inapplicable
__________________
FORM 10
Rule 15.07
[heading as in form used in application]
NOTICE OF APPLICATION FOR LEAVE TO PROCEED
(Section 61 of the Vexatious Proceedings Act 2014)
TO:
(a)the Attorney-General;
(b)[name of person to be given notice of the application in accordance with the Court's direction, and if more than one, list separately].
TAKE NOTICE that [name] of [address], a person subject to a general litigation order or an extended litigation restraint order that relates to intervention order legislation [identify the relevant order], has made an application to the Court for leave to proceed as follows: [describe the relief sought in the application].
Under section *60/*61(2) of the Vexatious Proceedings Act 2014, the Court has directed that notice of the application for leave to proceed be given to you.
This notice is accompanied by a copy of the application for leave to proceed and by a copy of every order made or direction given by the Court in the application to which this notice relates.
You are entitled to make submissions in relation to the application.
Date:
Any questions?
If you have any questions, please contact the registrar at the Children's Court of Victoria [venue], Tel: [insert telephone number], Hours: 9:00 a.m. to 4:30 p.m. each working day.
*delete if inapplicable
__________________
FORM 11
Rule 15.08
*[heading as in Form 5A of the Magistrates' Court General Civil Procedure Rules 2010]/*[heading in accordance with Rule 27.02 of those Rules]
APPLICATION FOR LEAVE TO APPLY TO VARY OR REVOKE EXTENDED LITIGATION RESTRAINT ORDER
(Section 65(2) of the Vexatious Proceedings Act 2014)
I, [name], a person subject to an extended litigation restraint order that relates to intervention order legislation [identify the relevant order] apply for leave to apply to *vary/*revoke that order under section 65(2) of the Vexatious Proceedings Act 2014.
I contend that leave to apply should be given to *vary the order/*revoke the order on the following grounds: [set out the grounds in numbered paragraphs].
ORDERS SOUGHT
The applicant seeks leave to apply for—
*1.variation of the order in the following manner [specify variation of order sought];
*1.the revocation of the order;
2.[set out any other orders sought].
FILED [insert date].
This application was filed—
*(a)by the applicant in person.
*(b)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].
*(c)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].
The address of the applicant is:
The address for service of the applicant is:
Date:
Signed
*delete if inapplicable
__________________
FORM 12
Rule 15.09
*[heading as in Form 5A of the Magistrates' Court General Civil Procedure Rules 2010]/*[heading in accordance with Rule 27.02 of those Rules]
APPLICATION TO VARY OR REVOKE EXTENDED LITIGATION RESTRAINT ORDER
(Section 65(2) of the Vexatious Proceedings Act 2014)
I, [name], a person subject to an extended litigation restraint order that relates to intervention order legislation [identify the relevant order] apply to *vary/*revoke that order under section 65(2) of the Vexatious Proceedings Act 2014.
Leave was granted to me to apply to *vary/*revoke that order by order of [insert name of Court] on [insert date]. Attached to this application is a copy of that order.
I contend that the order should be *varied in the manner set out below/
*revoked on the following grounds: [set out the grounds in numbered paragraphs].
ORDERS SOUGHT
The applicant seeks—
*1.variation of the order in the following manner [specify variation of order sought];
*1.revocation of the order;
2.[set out any other orders sought].
FILED [insert date].
This application was filed—
*(a)by the applicant in person.
*(b)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner].
*(c)for the applicant by [name or firm of Australian legal practitioner], Australian legal practitioner, of [business address of Australian legal practitioner] as agent for [name or firm of principal Australian legal practitioner], Australian legal practitioner, of [business address of principal].
The address of the applicant is:
The address for service of the applicant is:
Date:
Signed
*delete if inapplicable
__________________
FORM 13
Rule 15.10
[heading as used in application for leave to vary or revoke litigation restraint order]
NOTICE OF APPLICATION TO VARY OR REVOKE EXTENDED LITIGATION RESTRAINT ORDER
(Section 68(2) of the Vexatious Proceedings Act 2014)
TO:
(a)the Attorney-General;
(b)[name of person to be given notice of the application in accordance with the Court's direction, and if more than one, list separately].
TAKE NOTICE that [name] of [address], a person subject to an extended litigation restraint order, has made an application to the Court to *vary the extended litigation restraint order in the following manner [describe variation sought]/*revoke the extended litigation restraint order.
Under section 68(2) of the Vexatious Proceedings Act 2014, the Court has directed that notice of the application for *variation/*revocation be given to you.
This notice is accompanied by a copy of the application for *variation/
*revocation and by a copy of every order made or direction given by the Court in the application for *variation/*revocation and in the preceding leave application.
You are entitled to make submissions in relation to the application for *variation/*revocation.
Date:
Any questions?
If you have any questions, please contact the registrar at the Children's Court of Victoria [venue], Tel: [insert telephone number], Hours: 9:00 a.m. to 4:30 p.m. each working day.
*delete if inapplicable".
Dated: 19 February 2020
AMANDA J. CHAMBERS,
President, Children's Court of VictoriaKIM M. W. PARKINSON,
Magistrate, Children's Court of VictoriaGAIL HUBBLE
Magistrate, Children's Court of Victoria
═════════════
Endnotes
[1] Rule 4: S.R. No. 169/2018.
[2] Rule 13: S.R. No. 94/2011.
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