Domestic Violence & Intervention Orders
Are you responding to or making an application for a Family Violence Intervention Order?
If so, please get in touch with our office for advice today. We appear regularly to represent clients concerning Family Violence Intervention Orders.
Dribbin & Brown Criminal Lawyers routinely deal with domestic violence (family violence) and intervention order applications, and we have specialist lawyers ready to help.
Have you been charged with offences for breaching a Family Violence Intervention Order?
If you are facing Domestic Violence charges, you must find a criminal law firm with experience handling these matters.
See the below links for relevant charges under the Family Violence Protection Act 2008 (Vic):
- S 123 – Contravention of family violence intervention order
- S 123A – Contravention of order intending to cause harm or fear for safety
- S 125A – Persistent contravention of notices and orders
See ‘Breaching Family Violence Intervention Orders‘ for more.
The Family Violence Protection Act 2008
In Victoria, Family Violence Intervention Orders (FVIO) are regulated under the Family Violence Protection Act 2008.
Whether you are the respondent or the applicant of a Family Violence Intervention Order, it is essential to engage lawyers with a comprehensive understanding of the relevant legislation and rules concerning these types of hearings.
What is a Family Violence Intervention Order?
A family violence intervention order (FVIO) is a court order to ensure the safety of an affected family member, their children and property from family or domestic violence. A FVIO is a legal document requiring the person using family violence (a respondent) to comply with specific conditions.
An intervention order is a civil matter; however, if the respondent fails to comply with the conditions, they can be charged with a criminal offence (known as a breach).
Family violence intervention orders may also be known as domestic violence orders (DVO), intervention orders, protection orders, family violence orders (FVO), apprehended violence orders (AVO), or violence restraining orders (VRO) in other states and territories.
In Victoria, under the Family Violence Protection Act 2008 (FVPA), any affected family member experiencing domestic violence can apply for a family violence intervention order.
What is the definition of ‘family member’?
S 8 of the FVPA defines a family member as:
- a current or former spouse
- a domestic partner
- a person who has had an intimate personal relationship with the respondent, whether or not it’s sexual.
“Family member” of a person (the “relevant person”) also includes any other person whom the relevant person regards as being like a family member having regard to the circumstances of the relationship (s 8(3)).
The definition, therefore, includes boyfriend/girlfriend, same-sex relationship, parties involved in a brief sexual relationship, close platonic friends, parent, child, relative (including immediate and extended family) or a person the relevant person views as being like a family member.
What is a ‘domestic family member’?
A domestic partner is a person who is an adult to whom the person seeking protection is not married but is in a relationship as a couple, irrespective of gender and whether or not they are living together (s 9).
What is family or domestic violence?
For the purposes of the Family Violence Protection Act 2008, family violence is defined in s 5 as:
- behaviour by a person towards a family member that:
- is physically or sexually abusive; or
- is emotionally or psychologically abusive; or
- is economically abusive; or
- is threatening; or
- is coercive; or
- in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; or
- behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to above (s 5 (1)).
For example, the following behaviour may constitute family violence:
- using coercion, threats, physical abuse or emotional or psychological abuse to cause or attempt to cause a person to enter into a marriage;
- using coercion, threats, physical abuse or emotional or psychological abuse to demand or receive dowry, either before or after a marriage;
- a child witnessing or hearing or being exposed to the effects of:
- threats of physical abuse by one family member towards another family member;
- seeing or hearing an assault of a family member by another family member;
- comforting or providing assistance to a family member who has been physically abused by another family member;
- cleaning up a site after a family member has intentionally damaged another family member’s property;
- being present when police officers attend an incident involving physical abuse of a family member by another family member.
Family violence also includes the following behaviour:
- assaulting or causing personal injury to a family member or threatening to do so;
- sexually assaulting a family member or engaging in another form of sexually coercive behaviour or threatening to engage in such behaviour;
- intentionally damaging a family member’s property, or threatening to do so;
- unlawfully depriving a family member of the family member’s liberty, or threatening to do so;
- causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member (s 5(2)).
The FVPA is clear that conduct that may not be criminal in nature can still constitute family violence.
How to get a Family Violence Intervention Order
A family violence intervention order can be made by application to the Magistrates’ Court by the police or an affected family member. Where the applicant or respondent is under the age of 18 years, applications are made in the Children’s Court.
An application form can either be completed online or at your local court. Usually, the process is that once you have completed an application form and have compiled any relevant evidence, an appointment is made with the Family Violence Registry.
If a matter is very serious, it will be brought quickly before a Magistrate who will read the application and hear evidence from the affected family member.
As per s 74 of the Family Violence Protection Act, in order to grant a family violence intervention order, the Magistrate must be satisfied of two things on the balance of probabilities:
- that the respondent has committed family or domestic violence; and
- that the respondent is likely to do so again.
What conditions can be included in a Family Violence Intervention Order?
The Family Violence Protection Act sets out some conditions that can be included in a Family Violence Intervention Order.
- S 81 – a family violence intervention order may include conditions that:
- prohibit the respondent from committing family violence against the protected person;
- exclude the respondent from the protected person’s residence (this is referred to as an exclusion condition);
- restrict access to any premises or designated area (home, school, workplace, public transport, etc.);
- prohibit the respondent from contacting or communicating with the protected person by any means;
- direct the use of specific personal property;
- prohibit publishing any material about the protected person on the internet, via email or other electronic devices;
- agency clause (prohibiting other people from engaging in conduct prohibited by the order);
- require the respondent to engage in counselling or specific rehabilitation programs (such as the Men’s Behavioural Change Program);
- revoke/suspend any firearms licence held by the respondent.
- S 82 – the respondent can be excluded from the residence, subject to exclusion orders in relation to children under s 83. The court may ask for a report from DHS under s84;
- S 86 – the court may make directions in relation to personal property;
- S 87 – the Family Court takes precedence over the Magistrates’ Court order subject to any inconsistency;
- S 92 – the court can include a clause to allow child contact; and
- S 95 – the court can make orders in relation to a respondent’s firearms licence.
What happens after a Family Violence Intervention Order application has been filed?
Once an application has been filed by an applicant or by the police, usually a summons is issued and served by the police on the respondent to attend court at a specified date and time.
If, however, the allegations are very serious (for example, there has been an assault or very serious threats of violence) and the registrar of the court is concerned that the affected family member’s safety or property could be threatened if the respondent is not apprehended and brought into custody, a warrant can be issued to apprehend the respondent.
If a respondent is apprehended, they are taken into police custody, questioned by the police and then a decision is made whether to place the respondent on bail to attend court at a later date. The police may also consider laying criminal charges at this time.
Can a person be removed from the family home?
The answer is yes. In determining whether to make an intervention order, the court must consider whether to include an exclusion provision under s 82 of the FVPA.
As we all know, family violence is a hot topic in the media, and shocking cases like that of Rosie Batty, whose son Luke Batty was murdered by his father in February 2014, have made Magistrates err on the side of caution with good reason. While serious cases of family violence absolutely warrant intervention by the courts, we also see unfair and heartbreaking situations where our clients are dealing with a particularly vindictive applicant motivated to separate them from their children, home, and finances.
Removing a party from a matrimonial home can be (and often is) used as a tactical advantage if family court proceedings are in the works. This often leaves one party with sole possession of the former matrimonial home and full custody of the children.
It is incredibly stressful and a process that happens quickly, so it is important to seek informed legal advice urgently. We will do absolutely everything we can to help you. The typical scenario that we see is when a relationship has broken down, and children are involved, an argument has occurred in the marital home, the police are called, and almost immediately, a family violence safety notice is issued, removing the respondent from the family home and from making contact from their family.
Once an application has been brought to court and an order has been made, it can mean waiting several months to contest or vary the order (meaning that the respondent has no access to the home or his family for this entire time).
s 82 Exclusion of respondent from residence
(2) In making a decision about whether to include an exclusion condition in the family violence intervention order, the court must have regard to all the circumstances of the case, including the following—
(a) the desirability of minimising disruption to the protected person and any child living with the protected person and the importance of maintaining social networks and support which may be lost if the protected person and the child were required to leave the residence or were unable to return to or move into the residence;
(b) the desirability of continuity and stability in the care of any child living with the protected person;
(c) the desirability of allowing any childcare arrangements, education, training or employment of the protected person or any child living with the protected person to continue without interruption or disturbance.
When is a Family Violence Safety Notice issued?
The police may issue a Family Violence Safety Notice to protect an affected family member as a result of a family violence incident that has taken place. Once served on the respondent by a police officer, the notice is effective immediately. It protects the affected family member before a family violence intervention order application is heard in court.
The Family Violence Safety Notice includes conditions the respondent must obey and sets out what the respondent can and can’t do, and in many cases, will require the respondent to vacate the home. If any of the conditions are breached, the respondent can be charged with breaching the notice (a criminal offence). The notice is filed with the Magistrates’ Court.
The police can apply for a Family Violence Safety Notice even if an affected family member does not want one in place, which is often a difficult concept to grasp for our clients.
A police member will apply to a superior if satisfied that:
- The respondent is an adult;
- The respondent is not cognitively impaired;
- There are no Family Court orders in place that would be inconsistent with the proposed safety notice;
- There is no existing family violence order in place;
- The order is necessary to:
- Ensure the safety of the affected family member;
- Preserve any property of the affected family member; or
- Protect a child who has been subjected to family violence by the respondent; and
- The application is made outside of business hours.
The problem with Family Violence Safety Notices is that once they are in place, a full interim order will usually follow.
See more on interim family violence orders below for an explanation of how this can unfairly impact respondents before a full hearing in court.
Interim Family Violence IVOs
An interim intervention order is a temporary intervention order that a Magistrates’ Court can make under s 53 of the FVPA.
s 53 Court may make interim order
(1) The court may make an interim order if—
(a) a person has applied to the court for a family violence intervention order and the court is satisfied, on the balance of probabilities, that an interim order is necessary pending a final decision about the application—
(i) to ensure the safety of the affected family member; or
(ii) to preserve any property of the affected family member; or
(iii) to protect an affected family member who is a child who has been subjected to family violence committed by the respondent; or
(b) a person has applied to the court for a family violence intervention order and the parties to the proceeding have consented to, or do not oppose, the making of an interim order for the application; or
(c) a family violence safety notice has been issued for an affected family member and the court is satisfied, on the balance of probabilities, there are no circumstances that would justify discontinuing the protection of the person until a final decision about the application.
How to get an Interim Family Violence IVO
Section 53 of the Family Violence Protection Act allows a person to apply to the court for an interim order pending the outcome of any final finding of fact. The process is the same as outlined above.
The court must be satisfied on the balance of probabilities that the interim order is necessary to:
- Ensure the safety of the affected family member;
- Preserve the property of the affected family member; or
- Protect a child who has been subject to family violence committed by the respondent.
However, if the police have issued a Family Violence Safety Notice in relation to the affected family member, things are a bit different. Then, the court needs only to be satisfied per s 53(1)(c) of the FVPA that, on the balance of probabilities, there are no circumstances that would justify discontinuing the protection of the person until a final decision about the application has been made.
Before making an interim order, per s 53(1B), the court must consider whether any children have been exposed to family violence by the respondent. If so, they may make the child a protected person under the order if satisfied that the child’s need for protection is substantially the same as the affected family member’s.
There is a problem with applicants obtaining interim orders. If the matter cannot be negotiated when it first comes to court, it is adjourned for a contested hearing. If an interim order is put in place during that interim period, it means that the respondent is subject to the terms and conditions of a full order for the interim period.
This scenario occurs because the court cannot accommodate a contested hearing on short notice. Often, the contested hearing will not be heard within three months of the first mention date of the order, which is grossly unfair.
This can be very frustrating for respondents, particularly if there are children on the order or an exclusion order concerning the marital home.
Can an interim order be made in the absence of the respondent?
Yes, an interim order can be made in the absence of the Respondent. If you are aware of your court date and you are the respondent, we will always advise either that you are present in court or you have a lawyer appear on your behalf.
In the case Hickman v Smith & Anor  VSC 126, Ashley J sounded a warning about interim intervention orders, stating:
Something should be said about the jurisdiction to grant an interim intervention order. Whether such an order is made in the presence or absence of the respondent it is an order which has far-reaching consequences. Of course, the safety of the complainant is a crucial consideration. But it must be remembered that if such an order is made the consequences for a respondent are serious indeed. His or her conduct is inhibited; and any failure to abide the order constitutes an offence which may lead to the imposition of substantial penalties. Moreover, the order is made having heard one side of things only.
What is a Final Family Violence IVO?
A final intervention order is a final order made by a Magistrate in the Magistrates’ Court for a period of time. The duration of the order can be agreed between parties; however, the length of the order is always a decision of the court. S 97 of the FVPA outlines considerations that a court must take into account when determining the length of a final intervention order.
S 74 of the Family Violence Protection Act (FVPA) outlines the test the court must be satisfied with to make a final intervention order.
S 74 Power of court to make final order
(1) The court may make a final order if the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again.
(2) A final order may be made for more than one affected family member if
(a) the court is satisfied of the matters set out in subsection (1) in relation to each of the affected family members; or
(b) consent has been given, or the making of the order has not been opposed, in accordance with section 78 by—
(i) all the parties to the proceeding; and
(ii) if the application for the final order was brought with the consent of an affected family member’s parent or guardian, that parent or guardian.
(3) The court may make a final order whether or not—
(a) some or all of the family violence constituting grounds for making the order occurred outside Victoria, so long as the affected family member was in Victoria at the time at which the family violence occurred;
(b) the affected family member was outside Victoria at the time at which some or all of the family violence constituting grounds for making the order occurred, so long as that family violence occurred in Victoria.
See further – Director of Public Prosecutions (on behalf of Michael Jay Pena) v Brian Andrew Sutcliffe  VSC 43; Brian Andrew Sutcliffe v Director of Public Prosecutions (on behalf of Michael Jay Pena)  VSCA 34.
What does it mean to consent to an intervention order without making admissions?
If a respondent decides to consent to an intervention order, they can do so without ‘making admissions.’ This means that they agree to an intervention order being put in place; however, they do not agree to any of the allegations that form the basis of the application.
In practice, a Magistrate will usually note out loud in court and on the court file that ‘no admissions have been made by the respondent.’
See also ‘Things to think about before you consent to an intervention order‘ for more.
Is it possible to strike out a Family Violence Intervention Order?
While it is not impossible, it can be difficult to strike out an application in Family Violence Intervention order proceedings. Regulation 6.02 of the Magistrates’ Court (Family Violence) Protection Rules 2018 outlines circumstances where a court can strike out an application.
Reg 6.02 Striking out proceeding
The court may order that the whole or part of the application be struck out or amended if a proceeding—
(a) is scandalous, frivolous or vexatious; or
(b) may prejudice, embarrass or delay the fair hearing of the proceeding; or
(c) is otherwise an abuse of the process of the court.
Police powers in relation to family violence
Police have a number of powers under the Family Violence Protection Act (FVPA). See ss 13 to 23 of the FVPA for further details.
Police can enter without a warrant, detain suspects, arrest suspects and make a number of requests of people they reasonably suspect of committing family violence.
To determine whether police have breached the law in relation to how they have treated you, it is essential to get advice from an experienced lawyer.
Why are my children on the Family Violence Intervention Order?
The offending behaviour does not need to be directly focused on a particular family member for them to become an affected family member on an order. For example, a child can be present in the family home or witness offending behaviour towards another and be considered to require protection.
It is commonplace for police to include children on a Family Violence Intervention Order (FVIO) in these circumstances. It is enough if a child has assisted a family member who has been the recipient of family violence or who has assisted in cleaning up after intentional damage to another family member’s property to have an FVIO imposed, including the children.
That said, it is essential for a lawyer to consider the factual basis for including children on an FVIO.
Running a Contested Family Violence Intervention Order hearing
There are a number of aspects that differ to the usual court procedure when running a family violence matter as a contested hearing. These can be found in the Family Violence Protection Act 2008, as follows:
- S 62 – Children involved in proceedings are entitled to have their own representative;
- S 67 – Child witnesses can only be called to give evidence with the leave of the court;
- S 65 – Different evidentiary rules apply when adducing evidence. This section makes it clear that the court may inform itself in any way it thinks fit despite any rules of evidence to the contrary;
- S 66 – The court may admit sworn statements;
- S 70 – A respondent is not permitted to cross-examine a protected person if they are not legally represented; and
- S 77 – The court may, on its own initiative, impose protection of a child if the court deems it necessary.
Can I get my firearms back now that I have an intervention order against me?
If you have a final intervention order in place where you are the respondent, you will be a prohibited person under s 3 of the Firearms Act and s 3 of the Controlled Weapons Act 1990 (Vic). When an intervention order is put in place, the respondent’s firearm licence is automatically suspended, and the police have the power to seize all firearms and ammunition and remove them from a respondent’s home.
A prohibited person with an intervention order will remain prohibited from possessing and using firearms for the duration of the final intervention order plus a further 5 years.
If a final intervention order has been consented to or put in place by a court that precludes a firearm condition, then an application can be made to the court under s 189 of the Firearms Act for the respondent to become a non-prohibited person to possess and use firearms again legally.
See s 189 Application to be deemed not a Prohibited Person for more.
This application is something we can assist you with. Please call our office today to arrange an appointment.
What is an undertaking?
In proceedings for intervention orders, it is often the case that parties negotiate a resolution by agreeing to an undertaking, or mutual undertakings in the case of cross applications. An intervention order is a court order that means if a respondent breaches the order, the respondent may be subject to criminal charges, which could result in a criminal conviction.
An undertaking, however, is not legally binding, meaning that if the conditions are breached, there are no criminal consequences, such as breach proceedings. If an undertaking, however, is entered into by a party and it is not complied with, the affected party has an automatic right to come back to court to reinstate the undertaking or apply for another intervention order.
How do I request an undertaking?
An undertaking is a formal agreement usually negotiated and prepared by lawyers before each party signs it. If you want to negotiate an undertaking in an intervention order matter, please get in touch with our office today, and we can assist you.
What is a cross application?
A cross application can be made at any time by a respondent who has an intervention order against them. The application is made to the intervention order registry and goes through the usual process (see above) and is listed at the same time as the other pending application.
In situations where it is impossible to settle an application where we are representing a respondent, we usually advise our clients to lodge a cross application where there is merit to do so. It is usually the case that when this happens, the other party is more willing to negotiate a reasonable agreement with our client, whether that be by mutually withdrawing each application or agreeing to mutual undertakings.
It does of course depend on the case we are dealing with, and there are circumstances where we would not recommend making a cross application.
If you are considering making a cross application, please get in touch with our office today for advice.
Can I make an application to extend a current intervention order that is in place?
Yes, an application can be made to extend an intervention order for longer. To do so, an application must be made at least 4 weeks before the intervention order expires. An application is made to your local Magistrate’s Court.
The applicant is required to complete a form, and the registry will list the application similarly to an initial application (whereby a Magistrate will read the application and hear evidence from the applicant in court).
Appeals and Rehearings
Can I appeal a Family Violence Intervention Order?
Yes, a party to intervention order proceedings may appeal against an order or a refusal to make an order under s 114 FVPA. The process may differ depending on whether you are an applicant or an affected family member.
An intervention order finalised in the Magistrates’ Court is generally appealed to the County Court (s 115 FVPA). The County Court can hear Intervention Order appeals on the following grounds:
- the making or variation of a family violence intervention order;
- the conditions of a family violence intervention order;
- the refusal to make a family violence intervention order; or
- the refusal to impose certain conditions in a family violence intervention order (see the County Court Intervention Order Appeals Information Sheet).
However, an appeal of a family violence intervention order does not stay the operation of an intervention order unless an application is made pending the determination of the appeal (s 117 FVPA).
You cannot appeal an Interim Family Violence Intervention Order or the refusal by a Magistrate to make an interim order (s 14(2)(c) FVPA).
Time limit to appeal
An appeal of an intervention order decision must be lodged at the Magistrates’ Court within 30 days of the order being made (s 116(2)(c) FVPA). While it may still be possible to appeal after this time, it is advisable to seek specific legal advice.
First Listing hearing
When lodging an appeal at the Melbourne County Court, you will likely be provided with a ‘First Listing’ hearing date, place and time, and copies of the notice of appeal. This First Listing hearing (similar to a mention) occurs about 21 days after an appeal is lodged.
The First Listing hearing will be conducted before a Judge to determine the issues, how many witnesses will be called and if the matter can be resolved. A date for the appeal hearing will then be provided.
At the County Court appeal hearing, the Judge will hear evidence from both parties before deciding. The Judge may:
- confirm the intervention order; or
- set aside the intervention order; or
- vary the conditions of the intervention order.
All parties are required to attend the first listing hearing and the appeal hearing. If you are represented, your lawyer should also attend. Failure to attend may result in the appeal being struck out or an order made in your absence (s 118A).
If an appeal is struck out due to failure to appear at the hearing, and the appellant satisfies the court that the failure to appear was not due to fault or neglect on the part of the appellant, the court may set aside an order striking out an appeal under s 118A(3).
See the following provisions under the Family Violence Protection Act 2008 (Vic) for more on the appeals process:
- Who may appeal – s 114
- Court to which appeal must be made – s 115
- Notice of appeal – s 116
- Stay of relevant decision – s 117
See also Summers (a pseudonym) v McKenzie (a pseudonym)  VCC 2015 in the case of Family Violence Intervention Orders.
What if I was unaware of the Family Violence Intervention Order application?
If you are a respondent to a final intervention order, and the application for the order was not personally served on you or brought to your attention, you may apply for a rehearing under s 122 of the FVPA.
The respondent for a final order may also apply for a rehearing if there are exceptional circumstances and a rehearing is fair and just in the circumstances (s 122(1)(b)).
A rehearing is different from an appeal of the Magistrates’ decision to the County Court as it allows the respondent to have the matter reheard by a Magistrate.
Revocation and Variations of Intervention Orders
Under s 100 of the Family Violence Protection Act 2008 (FVPA), the court may order the variation or revocation of either an interim or final family violence intervention order.
In deciding to vary or revoke an intervention order, the court must have regard to all the circumstances of the case and, in particular, the following—
(a) the applicant’s reasons for seeking the variation or revocation;
(b) the safety of the protected person;
(c) the protected person’s views about the variation or revocation;
(d) whether or not the protected person is legally represented;
(e) if the protected person has a guardian, the guardian’s views.
If the court decides not to grant an application for the revocation of a family violence intervention order, the court may instead order the variation of the family violence intervention order in the way the court considers appropriate per s 100(3).
How can I vary my intervention order?
It is generally very difficult to vary an intervention order without the applicant’s consent. Notably, however, in circumstances in which the police made an application for an intervention order, the consent of the protected person is not required to vary an intervention order (s 10(1) FVPA).
In these cases, we are required to make contact with the police in advance of any application to vary an intervention order. Usually, if the request is reasonable, the police will agree to vary the application. This kind of application is straightforward and is usually granted by the court.
If the application cannot be made by consent, then the application must be made in writing using the appropriate court form. Leave must also be granted by a Magistrate before any variation is made. Leave can only be granted if the court accepts that there has been a change in circumstances and the change justifies the revocation or variation. If the order is an interim order, it must be in the interests of justice that the application be determined immediately rather than waiting for the hearing of the final order application (s 109 FVPA).
Can I seek costs if my Family Violence Intervention Order is withdrawn?
S 154 of the Family Violence Protection Act 2008 (FVPA) outlines the circumstances in which a cost application may be made. In the family violence jurisdiction, cost applications are rare, and it is usually the case that each party bears their own costs. That said, it may be possible to seek a costs order in exceptional cases or if it can be established that an application was vexatious, frivolous or made in bad faith.
See ‘Frivolous Intervention Orders‘ for more.
S 154 Costs
(1) Each party to a proceeding for a family violence intervention order under this Act or a proceeding for the variation, extension or revocation of a recognised DVO must bear the party’s own costs of the proceeding.
(2) In a litigation restraint order proceeding—
(a) if a person is made subject to an extended litigation restraint order or an acting in concert order, that person must bear the costs of the proceeding, other than the Attorney-General’s costs if the Attorney-General is a party to the proceeding; and
(b) if a person is not made subject to an extended litigation restraint order or an acting in concert order, each party must bear the party’s own costs.
(3) Despite subsections (1) and (2)—
(a) the court may make an order about costs if the court decides that exceptional circumstances warrant otherwise in a particular case; or
(b) if the court is satisfied in a particular case that the making of any application under this Act was vexatious, frivolous or in bad faith, the court may award costs against the applicant.
(4) For the purposes of subsection (3), the mere fact that an application is made and then withdrawn is not exceptional and does not amount in itself to a vexatious or frivolous application or an application made in bad faith.
(5) If the court decides there are grounds to award costs against a person but the person is not present in court, the court may—
(a) adjourn the proceeding; and
(b) give the parties to the proceeding notice that an order for costs will be made on the next mention date unless the party against whom the costs will be awarded contests the making of the order on the mention date.