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Family violence provisions

Last updated: 29 Mar 2021

Introduction to Family Violence

The provisions in the Residential Tenancies Act 1997 (Vic) (RTA) are designed to protect victims of family violence from being forced into homelessness. Currently, family violence is the leading cause of homelessness in Victoria.

The following details the key sections to consider if family violence is relevant to your client:

For the purposes of this section, a family violence ‘order’ or ‘notice’ includes: family violence safety notice, intervention order, recognised non-local DVO or personal safety intervention orders. Throughout this section, we refer to family violence although these protections also apply where there is a personal safety intervention order in place.

Practice tip

There is no automatic right to representation at the Tribunal in the applications outlined on this page. Accordingly, leave will be required under s 62(1)(c) Victorian Civil and Administrative Tribunal Act 1998 (Vic) for the applicant to be represented if the other party does not consent or is not represented by a professional advocate. See further Where do I go? What do I say?.

What is family violence?

Overview

In the RTA, family violence has the same meaning as in the Family Violence Protection Act 2008 (Vic) (FVPA) (s 3(1) of the RTA). Section 5 of the FVPA provides that family violence is behaviour by a person:

  • towards a family member of that person if that behaviour is physically or sexually abusive; emotionally or psychologically abusive; economically abusive; threatening; coercive; or in any other way controls or dominates the family member and causes that family member to fear for their, or someone else’s, safety or well-being (see examples); or
  • that causes a child to hear or witness, or otherwise be exposed to the effects of, the above behaviour (see examples).

Section 5(2) of the FVPA sets out a non-exhaustive list of behaviour that constitutes family violence. Behaviour may constitute family violence even if it would not be a criminal offence (s 5(3)).

Reduction of fixed term rental agreements

Overview

A renter experiencing family violence may reduce a fixed term residential rental; agreement by applying to the Tribunal to:

  • under s 91V of the RTA, terminate a residential rental agreement because of family violence if they meet the eligibility requirements (see Ending or creating a new agreement below); or
  • under s 91U of the RTA, reduce, vary or terminate a fixed term residential rental agreement due to severe hardship because of an unforeseen change of circumstances.

Note: If the perpetrator of family violence is not a party to the residential rental agreement, the renter cannot make an application under s 91V. However, the renter can make an application under s 91U.

See Reducing a fixed term lease for more information about applying for a reduction or termination under s 91U.

An application under s 91V has a number of protections for renters experiencing family violence such as in relation to cross-examination of victim-survivors of family violence (s 91Y) and timing of the hearing (s 91V(7)). The Tribunal may also determine the parties’ liability under the terminated agreement for bond, rent, damage and utilities: s 91X. Moreover, the termination of a residential rental agreement due to family violence does not give rise to a right to claim compensation for the early termination of the agreement: s 91X.

By contrast, the Tribunal has discretion to determine compensation (if any) in relation to an application for early termination due to hardship under s 91U: s 91U(3). (see Compensation and bond below).

An equivalent provision to s 91V is contained in s 142S for rooming house residents, s 206AG for caravan park residents and s 207M for Part 4A site tenants.

Ending or creating a new residential rental agreement

Overview

Under s 91V of the RTA, a person who “has been or is being subjected to family violence” or who is a protected person under a personal safety intervention order (irrespective of whether they are a party to the residential rental agreement) may apply to the Tribunal to:

  1. terminate the residential rental agreement; or
  2. terminate the agreement and require the residential rental provider to enter into a new agreement.

The Tribunal can then make certain orders under s 91W.

Who can apply?

A person can apply for an order to terminate or create a new residential rental agreement if they (s 91V(2)):

  1. are a party to the residential rental agreement; or
  2. reside in the premises as the person’s principal place of residence; and
  3. have or are being subjected to family violence by another party to the residential rental agreement; or
  4. are a protected person under a family violence order made against a party to the residential rental agreement.

A person subject to family violence includes (but is not limited to) a protected person under a family violence safety notice, family violence intervention order or recognised non-local DVO): s 91V(3).

Applications may be made on behalf of a child by a parent or guardian of a child who lives at the rented premises with the child: s 91V(5).

Practice tip

Under s 91V, the perpetrator of family violence must be party to the existing residential rental agreement and the applicant must be a party to the existing residential rental agreement or residing in the rented premises.

As such, it is important for clients wishing to avail themselves of the remedies in ss 91V and 91W that a set of keys is retained until, and the residential rental agreement is not terminated before the Tribunal has heard the application.

Return of keys will generally result in termination by abandonment under s 91F RTA. If the perpetrator returns the keys where the client is not a party to the agreement) or both the perpetrator and the client return the keys (where the client is a party to the agreement), the remedies under s 91W will generally not be available.

See Mercuri v Jefferis (Residential Tenancies) [2013] VCAT 2141 at [11] for an example of where the tenant correctly held on to her keys for this reason (noting that this decision relates to previous provisions under the RTA).

The result of this is the lease would be treated as broken (see Reducing a fixed term lease), the application under s 91W would fail and the client, if party to the rental agreement, would be left without the protections in s 91X, including the protection from lease breaking costs (see Compensation below).

It is important that you clearly advise your client of this, as we have seen that rental providers and agents will apply significant pressure on clients to return keys if they become aware that an application under s 91U has been or will be made and consider that this could also happen in relation to applications under s 91V.

Timing

The Tribunal must hear an application within three business days of it being filed, or where that is not possible, at the next available hearing date after the three business day period (s 91V(7)).

What must be the Tribunal satisfied of?

To grant an order, the Tribunal must be satisfied that (s 91W):

  • in the case of an application to terminate a rental agreement, the applicant or that person’s dependent children would likely suffer severe hardship if the residential rental agreement were not terminate and the hardship would be greater than any hardship the residential rental provider would suffer; or
  • in the case of an application to terminate a residential rental agreement and require the residential rental provider to enter into a new rental agreement:
  • the applicant and other persons (if any) can reasonably comply with the duties of a renter under a rental agreement; and
  • the applicant or that person’s dependent children would likely suffer severe hardship if they were compelled to leave the premises; and
  • the applicant would suffer greater hardship if an order were not made than any hardship that might be suffered by the residential rental provider if the order were made; and
  • if a renter is excluded from the premises under a notice or order, it is reasonable given the length of exclusion and the length of the existing rental agreement; and
  • it is reasonable considering the interests of other renters (other than the excluded renter) and, in particular, whether the other renters support the applicant’s application.

In determining an application under s 91V(1), the Tribunal under s 91V(3) must also take into account:

  • whether an application for a family violence notice or order has been made in respect of the applicant;
  • if an application for a family violence order or notice has been made whether there is an order or notice in effect and/or whether a renter is excluded from the rented premises under the notice or order;
  • support letters, reports, written statements from prescribed persons, bank statements of relevant parties, photographic or audio-visual evidence, electronic communications, oral evidence about where the applicant has been staying or living, the risk to personal safety of the applicant or their children and whether the party who is alleged to be the perpetrator of family or personal violence has been arrested, charged or released on bail (Residential Tenancies Regulations 2020 (Vic) regulation 36 (Regulations); and
  • any other matters the Tribunal considers relevant.

There are protections in place regarding cross-examination of a victim-survivor of family violence by the perpetrator in a proceeding under s 91V (s 91Y).

Consequences

As above, the Tribunal may make an order terminating the existing residential rental agreement or terminating the agreement and requiring that a new agreement be entered into with the specified persons.

Any new residential rental agreement must be on the same terms and conditions as the existing residential rental agreement (including rent), unless the Tribunal otherwise orders (s 91W(4)).

If the old residential rental agreement was a fixed term agreement, any new agreement’s term will not run longer than the remainder of that fixed term (s 91W(4)(b)).

If the residential rental agreement is terminated or terminated and a new agreement is entered into, the Tribunal may also make an order to (s 91W(7)):

  1. allow the applicant to access the premises to remove their belongings; and
  2. prevent the residential rental provider from listing information about the applicant on a residential tenancy database (see Tenancy Database Listings below).

If the Tribunal makes an order under s 91W, the Tribunal may determine the parties’ liability under the terminated residential rental agreement (see Compensation and bond below).

If the Tribunal creates a new tenancy under s 91W(1)(b) and s 91(1A)(b), the applicant may change the locks for rented premises (see Modifications below).

Compensation and Bond

General Compensation

Find more general information regarding compensation.

If compensation is claimed by the Director of Housing (DOH) in relation to a public housing, under departmental policy no compensation should be claimed in relation to damage caused by the perpetrator of family violence (see Tenant Property Damage Operational Guidelines. See further Overview (DOH Housing Debts). Similar protections may apply in community housing provider guidelines. There are otherwise no specific family violence provisions in the compensation laws beyond those described below.

Compensation where residential rental agreement terminated early

The determination of compensation for early termination will depend on the how the residential rental agreement ended.

Ending or creating a residential rental agreement under s 91W because of family violence

If the Tribunal makes an order terminating or creating a new residential rental agreement because of family violence under s 91W (see Ending or creating a new residential rental agreement above):

  • the termination of a residential rental agreement does not give rise to a right to claim compensation for the early termination of the agreement: s 91X(2);
  • the Tribunal may determine liability relating to outstanding rent and utility charges, as well as damage to the rented premises: s 91X(1). The Tribunal may adjourn the hearing to allow inspection of the rented premises: s 91X(3).
Compensation for reduction / termination of fixed term residential rental agreement under s 91U

The Tribunal “may” determine compensation (if any) for a reduction or termination of a fixed term residential rental agreement due to hardship under s 91U: s 91U(3).

When running a s 91U argument to reduce a fixed term rental agreement, lawyers should advocate strongly for the Tribunal not to make significant compensation orders against their client pursuant to s 91U(3) in circumstances of family violence and that if any compensation is ordered, it should be less than what would otherwise be ordered in a lease break compensation claim pursued under s 210.

See Ending a fixed term lease for more information.

Compensation for ending the residential rental agreement early without applying for an order

The residential rental provider may apply under s 210 RTA for compensation for early termination if the renter has ended the residential rental agreement early without applying to the Tribunal for an order to do so.

See Compensation for more information, including the provisions applicable to compensation claims involving rooming houses, caravan parks and part 4A site tenants.

Bond

The Tribunal may apportion liability in respect of an application for repayment of the bond in respect of loss and damage (including unpaid rent) where the applicant is a victim of family violence.

Determining liability where there is a s 91W order ending or creating a residential agreement because of family violence.
  • If the Tribunal makes an order under s 91W (see above), the Tribunal may determine the liability of the applicant in relation to the bond (s 91X).
Application for repayment of bond

Section 420A RTA applies where:

  1. is an application for repayment of bond;
  2. the renter is a victim of family violence; and
  3. there is more than one renter under a residential rental agreement.

Practice Note

The applicant is not required to prove that a person has been convicted of an offence or is subject to a family violence notice or order.

The Tribunal may order that (s 420A(3)):

  • liability be apportioned between renters, including making a renter who committed the family violence liable for all of the residential rental provider’s loss and damage (including any unpaid rent); and
  • the portion of the bond paid by the victim-survivor of family violence is excluded from the bond available to compensate the residential rental provider.

Where the Tribunal is hearing an application for the repayment of bond and the alleged perpetrator of the family violence is not a renter, the Tribunal may make an order that the victim-survivor is not liable for any loss or damage suffered by the residential rental provider (s 420B) if:

  • the loss or damage was caused by the actions of the alleged perpetrator; and
  • there is a family violence notice or order in force.

Eviction for RTA breaches caused by family violence

Overview

Residential rental providers may seek to evict a renter by issuing a notice to vacate (see Checking Notices to Vacate). Such a notice can be challenged if breach or act giving rise to the notice was caused by a family violence perpetrator.

Pre-emptively challenging a notice to vacate

A renter who has been given a notice to vacate may challenge this notice on the grounds that the act or breach giving rise to the notice was caused by a person who has subjected the applicant to family violence or personal violence (s 91ZZU). Equivalent provisions apply for rooming house residents (s 142ZZ), caravan park residents (s 206AZP) and Part 4A site tenants (s 207ZO).

This challenge must be made on or before the hearing of an application of a possession order and within 30 days of receiving the notice (s 91ZZU(2)).

Challenges can be made in respect of the following notices to vacate:

  1. serious damage (s 91ZI) (see Possession for serious damage);
  2. danger (s 91ZJ) (see Possession for danger) ;
  3. threats and intimidation (s 91ZK) (see Possession for threats and intimidation);
  4. failure to comply with Tribunal order (s 91ZO) (see Possession for non-compliance);
  5. successive breaches by renter (s 91ZP) (see Possession for non-compliance);
  6. use of premises for an illegal purpose (s 91ZQ) (see Possession for illegal use); or
  7. drug related conduct in public housing (s 91ZR) (see Possession for illegal use).

The Tribunal must make an order that the notice to vacate is invalid if it is satisfied that the applicant has been subjected to family violence and the perpetrator caused the act or breach giving rise to the notice to vacate (s 91ZZV). The Tribunal does not have residual discretion to decline to make an order if it is satisfied of those two things.

Defending a notice to vacate and possession order application using the reasonable and proportionate test

In the alternative to filing a direct challenge either before or at a hearing, the renter can wait for the possession order hearing and challenge the notice to vacate and the application for a possession order on family violence grounds using the reasonable and proportionate test: see s 330A.

In deciding whether to make a possession order and applying the reasonable and proportionate test, the Tribunal must consider:

  • whether the breach was caused by the conduct of a person other than the renter (s 330A(c));
  • if there are family violence orders or notice in force and if they include an exclusion condition (s 330A(d)(i), (ii)); and
  • any other matter in relation to family or personal violence that the Tribunal thinks is relevant (s 330A(d)(iii)).

The reasonable and proportionate test therefore provides another avenue to defend a renter’s tenancy in circumstances where the renter does not want to pre-emptively challenge the notice to vacate, or has missed the opportunity to do so.

See Reasonable and proportionate test for more information.

Tenancy database listings

Overview

The RTA contains special family violence protections against tenancy database ‘blacklisting’. The RTA prohibits residential rental providers and/or database operators listing information about a person on a tenancy database regarding:

  1. a breach of a residential rental agreement where the breach was the result of an act or a circumstance of family violence (s 439E(3));
  2. the termination of the residential rental agreement and entry into a new residential rental agreement as a result of an order under s 91W (see above) (s 439F(6)(a)); and
  3. a notice to vacate that has been found to be invalid under ss 91ZZV, 142ZZA, 206AZP or 207O because of a family violence context (see part 6) (s 439F(6)(b)).

*Note this appears to be a drafting error in the legislation and should refer to s 207ZO.

Residential rental provider or database operators must also not list personal information on a residential tenancy database if the renter has objected to the residential rental provider, agent or database operator listing the information because it relates to an act or circumstance of family or personal violence (s 439F(7)). The objection must be accompanied by documentary evidence of the kind prescribed by regulation 96 of the Regulations.

Under s 439G RTA, if the residential rental provider becomes aware that any information is:

  • inaccurate, incomplete, ambiguous or out of date; or
  • relates to family or personal violence;

they must, within 7 days, give written notice to the database operator to amend or remove the information.

Victim-survivors of family or personal violence may also apply to the Tribunal requiring a residential rental provider, agent, or database operator to remove, or not list personal information about them (s 439L(2A)). Before making an order under s 439M(1), the Tribunal must be satisfied that a breach of a residential rental agreement was a result of family violence or personal violence committed by another person.

Modifications to rented premises

Overview

Generally, renters must not make modifications to the rented premises without the residential rental provider’s consent. However, there are some exceptions, including for victim-survivors of family violence.

See s 115 for permitted modifications in rooming houses, s 171B for permitted modifications in caravan parks and s 206ZMB for permitted modifications in Part 4A site tenancies.

Locks for rented premises where a new residential rental agreement is created under s 91W(1)(b)

If the Tribunal creates a new tenancy under s 91W(1A)(b) (see above), the applicant may change any external door or window locks, including a lock in the master key system (s 70B(1)) for the rented premises

As soon as practicable after changing the locks, the applicant must give the residential rental provider and any other parties to the residential rental agreement, a key to the lock: s 70B(2). A residential rental provider or that person’s agent must not give a key to the person who was a party to the existing agreement, and is not a party to the new agreement: s 70B(3).

Other modifications that do not require consent

Renters can make some modifications to the rental premises, including family violence related safety modifications, without the residential rental provider’s consent: s 64(1). Those modifications are set out in regulation 26 of the Residential Tenancies Regulations 2021 (Vic) (the Regulations) and include:

  • installation of security lights, alarm systems or security cameras that do not impact the privacy of neighbours, can be easily removed, and are not hardwired to the rented premises*;
  • installation of non-permanent window film;
  • replacement of curtains if the original curtains are retained by the renter; and
  • installation of a lock on a letterbox.

*Not available for heritage listed properties

Other modifications which residential rental provider cannot unreasonably withhold consent to

In addition to the modifications that renters can make without consent, there are certain modifications that residential rental providers are prohibited from unreasonably withholding consent to (s 64(1B)).

These include a number of family violence safety protection such as:

  • modifications that do not penetrate or permanently modify the property (s 64(1B)(a)); and
  • modifications required for health and safety purposes (s 64(1B)(b));
  • reasonable security measures (s 64(1B)(e));
  • modifications that are necessary to ensure the safety of a party to the residential rental agreement who has been or is being subjected to family violence by another party to that agreement, or who is a protected person under a personal safety intervention order (s 64(1B)(f));
  • installation of a security system by a suitably qualified person that does not impact on the privacy of neighbours (s 64(1B)(h); regulation 28(e) Residential Tenancies Regulations);
  • installation of a secure letterbox (s 64(1B)(h); regulation 28(h) Residential Tenancies Regulations); and
  • modifications to secure external gates n non multi-unit dwellings (s 64(1B)(h); regulation 28(j) Residential Tenancies Regulations).
    • Note that the right under s 64(1B)(f) to make family violence modifications is relatively confined given it requires the perpetrator to be a party to the residential rental agreement. If an order has been made creating a new tenancy under s 91W, the existing agreement will terminate on the signing of the new residential rental agreement (s 91W(6)). If a victim-survivor wishes to make modifications to ensure their safety (other than changing the locks under s 70B), they should consider making the request before the Tribunal hearing under s 91W, or alternatively relying on one of the other sections of s 64(1) or (1B).

A residential rental provider may refuse consent if a valid notice to vacate has been given to the renter in connection with an imminent change of possession, use or ownership of the rented premises, or for modifications that, for example, (s 64(1C)):

  • significantly change the premises, or require modifications to other premises or common areas;
  • result in non-compliance with another Act; or
  • would result in additional maintenance costs were the rented premises not restored at the end of the renter’s occupation of the premises.

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