Personal Safety Intervention Orders in Victoria

PSIOs compared with Family Violence Intervention Orders

The two schemes do not overlap, and choosing the correct statutory pathway matters. A Family Violence Intervention Order is made under the Family Violence Protection Act 2008 (Vic) where the parties are family members within that Act's definition — including current and former intimate partners, relatives, and certain carer relationships.

A PSIO is only available where the parties are not family members. Section 61(1)(b) of the PSIO Act makes that an express element of a final order, and section 62 prevents a final PSIO where an existing family violence intervention order or a recognised non-local DVO already covers the same people. If a relationship is borderline — flatmates, an ex-partner you never lived with, a carer — take advice before filing, because a misfiled application can be refused or redirected and leave you unprotected in the meantime.

Prohibited behaviour and stalking

The Act draws a deliberate distinction between two grounds: prohibited behaviour and stalking. They are defined separately and each is an independent basis for an order.

Prohibited behaviour is defined in section 5 as:

• assault;
• sexual assault;
• harassment — under section 7, a course of conduct that is demeaning, derogatory or intimidating, which can be carried out through a third person;
• property damage or interference — under section 8, repeated intentional damage or destruction, substantial interference (including withholding another person's property), or threats to do any of those things; and
• making a serious threat — under section 9, a threat to kill or to inflict serious injury within the meaning of sections 20 and 21 of the Crimes Act 1958 (Vic).

Stalking is defined separately in section 10. It requires a course of conduct engaged in on more than one occasion, or a protracted course of conduct with continuity of purpose. The listed acts are wide and include following a person, contacting them electronically, publishing statements relating to or purporting to relate to them, causing an unauthorised computer function, tracing their internet use, loitering near their home or workplace, interfering with their property, harming an animal, using abusive or offensive words, and keeping them under surveillance. Section 10 also captures any other act that could reasonably be expected to cause physical or mental harm — including self-harm — or to arouse apprehension or fear. There is a mental element: the person must have intended that result, believed it would probably occur, or ought to have understood that it would probably occur.

Section 11 excludes conduct by people performing official duties — criminal law enforcement, administering an Act, enforcing pecuniary penalties, executing warrants and protecting public revenue.

Who may apply, and which court

Section 15 sets out who may bring an application:

• the affected person;
• another adult, with the affected person's written consent;
• for a child — a parent, or another person with a parent's written consent or with leave of the court, or the child themselves with leave if they are 14 or older;
• a guardian, or another person with leave of the court; and
• a police officer.

Where leave is needed, section 16 requires the court to grant it if that is in the affected person's best interests, and prevents leave being granted to a child applicant unless the child understands the nature and consequences of a PSIO.

Where police apply, section 63 allows an order to be made without the affected person's consent, but only with the limited conditions in section 67(2)(a), (b), (f), (g) and (h) — unless the affected person is a child with no adult applicant, or an adult or guardian consents, or the affected person is cognitively impaired. Police are also not obliged to apply, or to seek a variation, simply because they are asked.

Age limits and forums. Section 18 prevents an order being made against a child under 12. Where the affected person, protected person or respondent is a child, section 103 gives both the Family Division of the Children's Court and the Magistrates' Court jurisdiction, but provides that if the respondent is a child the matter should, if practicable, be dealt with by the Children's Court. Section 105 allows either court to transfer a proceeding to the other.

Applying, screening and service

An application is filed at a proper venue of the Magistrates' Court or Children's Court (section 12). A non-police applicant may support the application with a declaration of truth (section 13); knowingly making a false declaration is an offence under section 110A carrying up to 600 penalty units or five years imprisonment. Police must use an oath, affidavit or certified form. Applications may be made by telephone, fax or electronic communication, which is what allows police to seek urgent protection outside court hours.

Screening. Section 16A requires a registrar to refuse an application that is frivolous, vexatious, without substance, made in bad faith, has no reasonable prospect of success, is an abuse of process, or would be more appropriately dealt with by mediation. That screen does not apply to police applications or to applications to vary, revoke or extend an order. If your application is refused, you may apply to the court, which can direct the registrar to accept it.

Service. The registrar serves the application on the respondent and, where the applicant is not the affected person, on the affected person or their parent or guardian (section 19). Documents under the Act must be served personally (section 176), although the court can order service by another means or substituted service where personal service is not reasonably practicable. Orders themselves are served under section 174, with copies going to the Chief Commissioner of Police and the police station nearest the protected person's home. Section 21 also allows a warrant for an adult respondent where it is needed to ensure safety, preserve property or secure attendance at a mention date.

Mediation

Because many PSIO disputes are neighbourhood or community disputes rather than safety emergencies, the Act builds in a diversion to mediation through the Dispute Settlement Centre of Victoria.

Under section 26 the court may direct the parties to a mediation assessment, and may direct them to mediation itself only once it has received a mediation assessment certificate stating the matter is suitable (section 26(2)). A police applicant is not bound by a mediation direction, and the court can exclude other people from it. Where an existing order would prevent mediation from taking place, section 27 requires the court to vary the conditions so that it can.

Mediation is genuinely voluntary in the sense that it carries no coercive sanction: section 32 provides that non-attendance is neither an offence nor a contempt. But it is not consequence-free — under section 33 the court may take the certificates, and any reasons given for not attending, into account when deciding the application. A mediator who forms the view that a matter is no longer suitable must terminate and issue a certificate saying so (section 31).

Interim orders

An interim order provides protection while the application works its way to a final hearing. Under section 35 the court may make one where it is satisfied on the balance of probabilities that the order is necessary pending a final decision to ensure the affected person's safety or to preserve their property, and that making it is appropriate in all the circumstances. The court may also make an interim order on consent or where the application is not opposed, without making those findings, and may make one where the respondent has not been served or is absent.

Section 38 requires oral evidence or an affidavit, subject to the limited waiver available for certified police applications made electronically outside ordinary hours. An interim order can protect more than one affected person (section 39).

When an interim order is made, section 40 requires the registrar to give the respondent a written explanation covering the purpose, terms and effect of the order, the consequences of breach, when it expires, how it can be varied, that the protected person cannot authorise a contravention, and what happens next in relation to the final order. A failure to give that explanation does not invalidate the order. Section 42 requires the matter to be listed for a decision on the final order as soon as practicable, allowing longer where a mediation direction has been given.

An interim order ends on service of a final order that continues it, when the final order is made, when a final order is refused, on revocation, or if the application is withdrawn (section 43).

Final orders, and resolving by consent

Before a contested application can be heard on a mention date, section 44 requires the court to be satisfied that the respondent has been served and has had a reasonable opportunity to consider the application.

At a final hearing, section 61 requires the court to be satisfied on the balance of probabilities of one of two alternatives:

1. the respondent has committed prohibited behaviour against the affected person, is likely to continue or repeat it, and the behaviour would cause a reasonable person to fear for their safety; or
2. the respondent has stalked the affected person and is likely to continue or repeat the stalking.

In addition, the parties must not be family members, and the court must be satisfied that making the order is appropriate in all the circumstances. Where the respondent is a child or has a cognitive impairment, the court may consider their ability to understand and comply with an order.

Section 61 also contains important exclusions. The court must not make an order where the conduct was engaged in without malice in the normal course of a lawful business, trade, profession or enterprise — expressly including publishing news or current affairs — or for the purposes of an industrial dispute, or for political activities or discussion of public affairs.

Consent without admissions. A matter may resolve by consent without admissions under section 64. Section 64(1) allows the court to make a final order without being satisfied of the section 61 matters if the parties to the proceeding consent to, or do not oppose, the making of the order. That is how a respondent can agree to conditions without accepting the allegations. The safeguards are that a child respondent still requires the court to be satisfied of all relevant matters; that, under section 64(2)(b), where the respondent is an adult the court may refuse to make the order if it believes that in all the circumstances it is not appropriate to do so having regard to the matters in section 61(2); that the court may hold a hearing if the interests of justice require it; and that the court may refuse a consent order if it may pose a risk to the safety of a party or a child of the protected person or respondent.

A consent order is enforceable in exactly the same way as one made after a contested hearing — including the criminal consequences of breach.

Conditions

Section 67 allows the court to impose the conditions it considers necessary or desirable. They include prohibiting prohibited behaviour, prohibiting stalking, excluding the respondent from a residence, prohibiting the respondent from approaching or contacting the protected person (with carve-outs for contact through police, a dispute assessment officer, a mediator or a specified person), imposing distance conditions, prohibiting the respondent from causing another person to engage in the conduct, and suspending, cancelling or revoking firearms authorities and weapons approvals or exemptions under section 69.

Section 66 requires the court to consider including conditions that will not prevent mediation — a practical reminder that blanket no-contact conditions can cut across the Act's own dispute-resolution pathway.

Firearms and weapons. Section 68 requires the court to enquire whether the respondent holds a firearms authority or weapons approval or is covered by a weapons exemption. Under section 69 an interim order may suspend those entitlements and a final order may cancel or revoke them. Section 127 removes the usual review routes: there is no appeal against such a condition under the Firearms Act 1996 (Vic) or the Control of Weapons Act 1990 (Vic), and the respondent cannot apply under section 189 of the Firearms Act for a declaration that they are deemed not to be a prohibited person.

Exclusion and school conditions. A residence for these purposes is a place shared, formerly shared or proposed to be shared (section 65). Excluding a child respondent from a residence is tightly controlled by section 71, which requires the court to weigh continuity and stability for children living with the protected person against the respondent child's access to accommodation, care, supervision, education and health services, with specific regard to culture and extended family where the child is Aboriginal or Torres Strait Islander. Sections 74 and 75 require the court to consider whether a condition would prevent a respondent attending school, and allow it to seek a report.

When a final order is made, section 76 requires the court to give a clear oral explanation to whichever of the respondent and protected person is present, covering the purpose, terms and effect of the order (including its effect on firearms and weapons), the consequences of non-compliance, and the fact that the protected person cannot give permission to contravene it. A written notice must also be given.

Duration

There is no default period fixed by the Act. Under section 77 the court may specify how long a final order runs, and in doing so must take into account the applicant's assessment of the level and duration of risk from the respondent and, where the applicant is not the protected person, the protected person's views and their own risk assessment. The court may also take into account matters the respondent raises about duration.

Where the respondent is a child, section 78 caps the period at 12 months unless there are exceptional circumstances. If no period is specified, section 79 provides that the order continues until it is revoked by the court or set aside on appeal.

Breach

Contravening a PSIO is a criminal offence. Section 100 applies once the respondent has been served with a copy of the order or has had it explained under section 40 or section 76, and carries a maximum of two years imprisonment or 240 penalty units, or both. Section 101 allows a police officer who believes on reasonable grounds that the offence has been committed to arrest and detain without warrant.

Two points cause repeated trouble. First, the protected person cannot consent to a breach — a text inviting contact does not make the contact lawful, and the respondent remains liable. Second, a PSIO can be made even though the respondent has been charged with an offence arising out of the same conduct (section 112), so civil and criminal proceedings often run in parallel. If you are charged with contravening an order, get advice before speaking to police; our guide to police interviews explains why.

Variation, extension and revocation

Orders are not fixed. Section 80 gives the court power to vary or revoke an order, and requires it to have regard to all the circumstances and in particular the applicant's reasons, the protected person's safety and views, whether the protected person is legally represented, and any guardian's views. If the court refuses to revoke, it may instead vary the order as it considers appropriate. Section 82 allows the court to refuse or modify a variation where that is necessary to protect another person covered by the order.

A respondent cannot simply apply. Section 86 requires leave, which is generally available only where there has been a change of circumstances that may justify variation or revocation, and, for an interim order, where it is in the interests of justice to determine the application immediately rather than waiting for the final hearing. A separate route exists where an interim order was made in the respondent's absence: leave may be granted in the interests of justice, and the court may set the order aside in exceptional circumstances, provided leave is sought within 21 days of service.

Extension. Under section 83 the court may extend a final order if satisfied on the balance of probabilities that the respondent is likely to commit prohibited behaviour or stalking if it is not extended — expressly regardless of whether the respondent breached or complied while the order was in force. Section 84 allows an interim extension order in the respondent's absence, expiring 28 days after it is made unless the respondent is served earlier. Apply before the order expires.

Where a police officer applies to vary or extend, section 87 allows it without the protected person's consent, but with the same restricted set of conditions and a prohibition on removing conditions. Under section 89, where the protected person objects to an application made by a parent, guardian or police officer, their views must be heard separately at the hearing.

Appeals and costs

Section 91 allows a party to appeal against an order or a refusal to make one, but there is no appeal against an interim order or a refusal to make an interim order. Section 92 directs the appeal to the County Court, or to the Trial Division of the Supreme Court where the decision was made by the Children's Court constituted by the President, or to the Court of Appeal where it was made by the Magistrates' Court or Children's Court constituted by the Chief Magistrate as a dual commission holder.

Notice of appeal must be filed with the court that made the decision within 30 days (section 93). Filing an appeal does not stay the decision, though the original court may order a stay under section 94 and may impose bail-style conditions where necessary to protect the protected person or secure attendance. The appeal proceeds by way of rehearing (section 96).

On costs, section 111 provides that each party to a PSIO proceeding bears their own. The court may depart from that where it decides exceptional circumstances warrant it, or where it is satisfied an application was vexatious, frivolous or made in bad faith. The broader costs position in Victorian civil litigation is covered in our guide to costs consequences in Victorian litigation.

Evidence and practical preparation

PSIO matters are decided on the balance of probabilities, and the quality of the contemporaneous record is often central to how the evidence is assessed.

• Keep a dated log. Record each incident with the date, time, place, what was said or done, and who else was present. A log written as events happen carries far more weight than a reconstruction prepared for the hearing.
• Preserve the originals. Keep messages, emails, social media posts, voicemails, call logs, CCTV and photographs of property damage in their original form, and take screenshots showing dates and sender details.
• Record police involvement. Note incident numbers, the station attended and the officers involved.
• Identify the course of conduct. Both harassment and stalking depend on repetition or a protracted pattern — set the incidents out chronologically so the pattern is visible.
• Do not manufacture contact. Provoking a response to obtain evidence undermines your credibility and may expose you to a cross-application.
• Respondents: address the elements. The answer is rarely a bare denial. Consider whether the conduct falls within a section 61 exclusion, whether the parties are in fact family members, whether repetition is likely, and whether conditions can be narrowed rather than resisted entirely.

A court may adjourn a hearing to give a party a reasonable opportunity to obtain legal advice (section 108). If you are unrepresented and out of your depth on a mention date, ask.

At Parke Lawyers we act for both applicants and respondents in PSIO matters across Victoria — advising on whether the correct scheme has been chosen, negotiating workable conditions, appearing at interim and contested hearings, and dealing with variations, extensions and appeals.

Frequently asked questions

Sources and further reading

• Personal Safety Intervention Orders Act 2010 (Vic) — Victorian Legislation (authorised in-force version).
• Personal safety intervention orders — Magistrates' Court of Victoria.
• Applying for a personal safety intervention order — Magistrates' Court of Victoria.
• Responding to a personal safety intervention order — Magistrates' Court of Victoria.
• Changing a personal safety intervention order — Magistrates' Court of Victoria.
• Personal Safety Intervention Order (PSIO) program — Dispute Settlement Centre of Victoria.
• Personal safety intervention orders — Victoria Legal Aid.