Family or personal violence and eviction

A notice to vacate is the initial step which begins the eviction process.  

It is a document that the rental provider must give the renter when they want the renter to move out, and it is required that they use the correct form. The document will be titled ‘Notice to Vacate’ and looks like this document. A text message, email or verbal statement asking the renter to leave is not a valid notice to vacate. 

Read more information about other legal requirements of notices to vacate and reasons they can be given. 

The renter does not need to leave their home by the date on the notice to vacate. If the renter doesn’t move out, the rental provider can apply to VCAT for a possession order. 
 
At a VCAT hearing, VCAT will hear all the evidence and decide whether to make a possession order at a hearing. If VCAT makes a possession order, it will tell the renter the date that they must move out by. The renter does not need to leave their home unless a possession order has been made by VCAT. 
 
If the renter has not moved out by the date on the possession order, the rental provider can apply to VCAT for a warrant of possession. Police will attend to execute a warrant of possession which allows them to physically remove the renter from the property. If someone other than the police are trying to evict the renter, the renter can call the  helpline on 1300 792 387 (Mon-Fri, 8am-6pm), and a duty lawyer might be able to help the renter apply for an urgent restraining order. 

Tenancy law contains options for renters who experience both family violence or personal violence as defined below. 

Family violence is a behaviour by a partner, caregiver, family member or guardian that is: 

• Physically or sexually abusive  

• Emotionally or psychologically abusive  

• Economically abusive  

• Threatening  

• Coercive  

• In any other way controls or dominates the family member causing them to feel fear for safety or wellbeing of themselves or others  

• Causes a child to hear or witness or be exposed to the effects of the above  

Personal violence can be carried out by a non-family member and means the following:  

• Assault  

• Sexual assault  

• Harassment  

• Property damage or interference  

• Making a serious threat  

• Stalking  

VCAT may dismiss a notice to vacate based on family or personal violence, if a renter was given the notice to vacate for one of the following reasons:  

• Serious damage to the home  

• Danger to the safety of neighbours, the residential rental provider, the agent or a contractor of the residential rental provider  

• Threats and intimidation to the rental provider or real estate agent or their contractor  

• Failure to comply with a VCAT order  

• Successive breaches of a duty (e.g. the duty of the renter not to cause nuisance which can include loud noise)  

• Using the property for an illegal purpose  

• Drug related conduct in public housing  

If VCAT is satisfied that your client has experienced family or personal violence and that violence is the reason the notice to vacate was given to them, then VCAT must make an order that the notice to vacate is invalid.

If VCAT orders that a notice to vacate is invalid, it means that the renter can stay in the property and is no longer being evicted.  

The renter will receive a notice in the mail or by email which will show the date, time and location of the hearing. If your client has misplaced the notice or do not have access to their mail or email, they can call VCAT on 1300 018 228 to check the details.  

At VCAT, the member will hear from both sides before making a decision. Generally, VCAT will ask to hear from the rental provider (or real estate agent) and will want to hear the renter’s side of the story. If there are co-renters who attend the hearing, VCAT may also want to hear from them.

After VCAT has heard both sides of the story and looked at your client’s evidence, they will make a decision. If they find the notice is invalid, the hearing will end.  If not, VCAT will consider whether it is ‘reasonable and proportionate’ to end the rental agreement. VCAT will consider the impact that a possession order would have on your client, their household or co-renters, the rental provider, and if relevant, any neighbours impacted by the relevant actions or behaviour.

Your client should be prepared to tell VCAT about the impact that an eviction would have on them, including:  

• any hardship your client and their household may experience if a possession order is made 

• any intervention orders or related experiences of family or personal violence  

• whether they would be facing homelessness if evicted from this property  

• whether there is a different order VCAT can make, or another course of action instead of ending the lease  

• anything else that VCAT thinks is relevant.  

There are dedicated family and personal violence support workers at VCAT who can help to keep your client safe during a VCAT hearing.

They can help to:  

• arrange for your client to attend the hearing by phone, or from another safe place  

• fill out paperwork or prepare for a hearing  

• support your client at a hearing.  

Read more about VCAT family violence support.  

VCAT must share evidence with all the parties in a matter. If your client is worried that sharing evidence of family or personal violence may put their safety at risk, they can ask VCAT for a hearing to decide how the evidence is used and who it is shared with. 
 
This will usually happen before the main hearing and is called a directions hearing. Your client should get the support of VCAT’s family violence workers if they are worried about their safety.  

Depending on what the hearing is for, VCAT can decide one of the following outcomes:  

• to make a possession order, if they consider it reasonable and proportionate to evict the renter based on the evidence present  

• to adjourn the hearing to another date  

• to order a payment plan (if the hearing was for being behind in rent)  

• to dismiss the application if it doesn’t meet certain requirements or if the evidence means that an order should not be made. If this happens, the eviction process ends and the renter can stay in their home.  

It is important that your client goes to their hearing because VCAT can make a decision even if they are not there. 
 
If your client has good reason for not being able to go to their hearing, they can ask for an adjournment (a change to the date of the hearing). Read more about the rules and timeframes when asking VCAT for an adjournment. 
 
If your client misses the hearing and had a reasonable excuse for not attending, they may be able to apply for a review hearing. 
 
If your client’s VCAT hearing was for being behind in rent, our free self-help tool, Dear Landlord, can help them to generate a tailored VCAT review hearing application.   

A possession order is serious because it allows the rental provider to evict the renter from the property. If the renter does not move out of the property after a possession order is made, a rental provider can get a warrant of possession from VCAT. A warrant of possession allows the police to remove the renter from the property.

If VCAT has made a possession order, the renter’s options depend on whether they or someone else attended the hearing on their behalf:  

• If they did not attend the hearing and no one attended on their behalf, the renter may be able to apply for a review hearing. If their application is accepted, VCAT will list a new hearing to decide if the previous hearing should be reopened and if so, will make a new decision about the eviction. A renter cannot be evicted until the new hearing happens. Read more about review hearings. 

• If the renter attended the hearing or someone attended on their behalf, they may be able to appeal if VCAT did not apply the law correctly to their case. You can read more about appealing a VCAT order to the Supreme Court. A renter can apply for assistance to do this through Justice Connect’s self-representation service.  

Your client can speak to a lawyer to understand what a VCAT possession order means for them, or if they believe the decision was wrong.  

A warrant of possession allows the police to remove the renter from the property and change the locks. Police will often tell the renter when they will be changing the locks so they have some time to prepare. Once the locks have been changed, the rental is over.