Family violence and personal violence
A person who has applied for a family violence intervention order, family violence safety notice, non-local DVO or personal safety intervention order can access family violence protections in the Residential Tenancies Act. VCAT, in considering an application under any family violence related provision, may take into account:
- whether an application for an intervention order has been made
- if an application was made, whether an order was granted and/or is still in place
- if an order was granted, whether an exclusion condition exists, and
- anything else VCAT considers relevant.
Under this reform, family violence related applications must be heard by VCAT within a specified time.
Family violence related protections under the Residential Tenancies Act can be accessed by a parent or guardian of a child who is a victim of family violence, where the parent or guardian lives in the same rented premises as the child. This will ensure that where family violence has occurred against a minor, family violence related protections under residential rental legislation are available. For example, a parent or guardian of a child who is a victim of family violence will be able to make reasonable security-related modifications to rented premises, even though the child is not a party to the residential rental agreement.
VCAT will be able to adjudicate terminations of residential rental agreements in situations of family violence. It can terminate an agreement or require creation of a new agreement that does not include the person who committed the violence.
Under this reform, the Residential Tenancies Act will include provisions that:
- enable a renter who has been subjected to family violence to challenge the validity of a notice to vacate issued on a range of grounds including danger, threats and intimidation, failure to comply with VCAT order, successive breaches of duty, use of premises for an illegal purpose, where the offending conduct was caused or committed by the person who subjected the renter to family or personal violence
- enable a victim of family violence who is a co-renter to apply to VCAT for an order to terminate a fixed term or periodic tenancy, without requiring consent from the other co-renters
- require VCAT to consider the relative impacts and hardship of each party to the residential rental agreement, prior to making an order
- enable VCAT to make an order requiring the RRP or agent to ensure that the victim of family violence has access to the rented premises to remove their belongings, where this is necessary
- enable VCAT to apportion liability between the relevant parties in relation to bond, utility charges, other liabilities such as damage, and compensation for early termination of the rental agreement (if relevant). VCAT would be able to determine that the person who committed family violence was fully liable
- enable VCAT to specify a termination date that must not exceed a certain period of time from the making of the order (for example, two weeks)
- enable VCAT to make an order preventing a RRP, agent and database operator from making a negative listing on a tenancy database against the renter who had been subjected to family violence.
To address the impact on co-renters and RRPs, VCAT, when making an order to terminate the residential rental agreement, may also make an order to:
- terminate the residential rental agreement, or
- terminate the existing agreement and create a new agreement with one or more of the remaining co-renters (with the same terms and conditions as the original agreement).
Agents and RRPs will be prohibited from making unfair tenancy database listings for victims of family violence when the listing is a result of the perpetrator's actions. VCAT will be able to order the removal of an unfair listing and to oversee the removal of unfair or unsafe details from a listing.
VCAT will be able to make an order that the RRP, agent or database operator must remove an existing listing or not make a listing on a residential tenancy database in relation to a victim of family violence, where it is satisfied that the breach of the residential rental agreement resulted from the actions of another person who committed family violence.
VCAT will be able to make an order that a database operator must remove or edit information from an existing listing in relation to a victim of family violence, where it is satisfied that not removing or editing the information would put the victim’s safety at risk (for example, current contact details). Information about the nature of the breach that resulted in the listing would not be able to be removed or edited.
This reform enables a notice to vacate to be challenged on the grounds that the relevant action or conduct was committed by a perpetrator of family violence. The renter must apply to VCAT challenging the validity of the notice to vacate on or before the hearing of an application for a possession order.
In situations where a victim of family violence and the perpetrator are co-renters, VCAT will be able, when making a compensation order or determining payment out of a bond, to:
consider whether another party to the agreement is a victim of family violence
apportion liability between co-renters, including determining that the perpetrator of family violence be fully liable for the RRP’s loss or damage
exclude the victim’s share of the bond from being made available for compensation, if the victim’s name is registered against the bond.
When considering an application for a compensation order or determining payment out of a bond, VCAT will be able to determine that a renter who is a victim of family violence is not liable for any loss, debt or damage. In making such a determination, VCAT would need to be satisfied that:
the loss or damage resulted from the actions of another person who has committed an act of family violence, and an order (interim or final) with an exclusion condition had been made against the perpetrator of family violence.
A consequential amendment to the VCAT Act will enable renters subjected to family violence to nominate VCAT to serve documents on the perpetrator of family violence in tenancy matters.