Magistrate exceeds his jurisdiction in extending Family Violence Intervention Order

Issue: Whether the Magistrate's Court had jurisdiction to vary and extend the final family violence intervention order (FVIO) without an application or order for extension before the expiry date, and whether the relief in the nature of certiorari should be declined despite jurisdictional error.

Rule: The relevant law in this matter is the Family Violence Protection Act 2018 (Vic), Part 4 and the Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 56. The law provides that a FVIO expires 12 months after it is made, unless extended by the court. An application for extension must be made before the expiry date of the FVIO. If no application or order for extension is made before the expiry date, the FVIO will expire.

Application: In this case, DDD consented to a final FVIO protecting his wife EEE and child for twelve months without admissions. Two months later, on EEE's ex parte application, the court made an interim order varying the final FVIO to a "no contact" order, which was expressed to "last until final order". The matter was adjourned for the final hearing of the variation application. Due to delays resulting from the COVID-19 pandemic, the final hearing was not reached for another fourteen months, which is four months after the expiry date of the final FVIO.

DDD did not apply for or order any extension of the final FVIO at the ex parte application or at any other time prior to the expiry date. Over DDD's objection as to jurisdiction, the magistrate made final orders varying and extending the final FVIO for two years, despite the passing of the expiry date. The magistrate ruled that the final FVIO was still extant because the earlier application for variation and adjournment carried with it an implicit extension of the final FVIO.

DDD sought relief in the nature of certiorari to quash the magistrate's final orders, arguing that the court did not have jurisdiction to vary and extend the final FVIO without an application or order for extension before the expiry date.

The court found that the magistrate's final orders were made without jurisdiction, as there was no application or order for extension before the expiry date of the final FVIO. The court also considered whether relief in the nature of certiorari should be declined despite jurisdictional error. Ultimately, the court granted an extension of time to commence proceedings and quashed the magistrate's final orders. Costs were ordered in favour of DDD and against EEE, with no costs awarded for or against the Magistrates' Court or contradictor. An indemnity certificate was granted to EEE.

Conclusion: The court found that the Magistrate's Court did not have jurisdiction to vary and extend the final FVIO without an application or order for extension before the expiry date. The court granted relief in the nature of certiorari, quashing the magistrate's final orders. The court also granted an extension of time to commence proceedings and awarded costs in favour of DDD and against EEE, with no costs awarded for or against the Magistrates' Court or contradictor.