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Tuesday, 10 March 2009

Evidence in family violence applications

From what I've seen so far, there is an increase in applications under the Family Violence Protection Act 2008, and an increase in the work required of s 45 applicants.

Applications can be brought by police, by unrepresented affected family members, by guardians (in the case of children) and by affected family members with the assistance of legal counsel. Not surprisingly, the statistics show that applications which are made by the police and by represented applicants have better prospects than those made by unrepresented litigants.

Also unsurprisingly, whatever brings the matter before the Court, evidence to decide interim and final order applications.

One boon in the new legislation is the provision for affidavit evidence:
  • s 55 for interim orders
  • s 66 for final orders
Magistrates' Court (Family Violence Protection) Rules 2008 Order 8 prescribes the form, content and filing of affidavits under those two sections. It also permits (but doesn't oblige) the Court to rely on an affidavit if there are problems with it.

The affidavit must be served on:
  • the applicant or respondent
  • adult affected family member or protected person
  • a parent or guardian, if they consented to the application
The affidavit must be served:
  • by post
  • by fax
  • by email, if provided under s 85(1) of the Act
I think it could also be served by mail or fax if the recipient consents: Electronic Transactions (Victoria) Act 2000 s 8.

There is no official form for an affidavit yet. This might be acceptable. It uses the general layout from civil proceedings. If you do suggest applicants use it, please stress it is not a fill-in-the-blanks form: it requires a little bit of forethought and some free narrative work.

But if used correctly, it can avoid the requirement for personal attendance and oral evidence.

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