Part 7Provisional orders
25Application by telephone, facsimile or other communication
device
(1)
A police officer may apply by telephone,
facsimile or other communication device—
(a)
to an authorised officer or senior police officer
for an interim apprehended domestic violence order, or
(b)
to an authorised officer for an interim
apprehended personal violence order.
(2)
In this Act—
(a)
an interim apprehended domestic violence order or
an interim apprehended personal violence order made on an application under
this section is referred to as a provisional
order, and
(b)
the police officer who applies for a provisional
order is referred to as the applicant
officer, and
(c)
the authorised officer or senior police officer
who makes a provisional order is referred to as the issuing
officer.
(3)
An application for a provisional
order—
(a)
may be made at the request of the protected
person or on the applicant officer’s own initiative,
and
(b)
may be transmitted to the authorised officer or
senior police officer by another person on behalf of the applicant officer if
it is not practicable for the application to be made by the applicant officer
by telephone, facsimile or other communication device directly to the
authorised officer or senior police officer.
s 25: Subst 2013 No
87, Sch 1 [5].
26When application may be made
(1)
An application may be made by telephone,
facsimile or other communication device if—
(a)
an incident occurs involving the person against
whom the provisional order is sought to be made and the person who would be
protected by the provisional order, and
(b)
a police officer has good reason to believe a
provisional order needs to be made immediately to ensure the safety and
protection of the person who would be protected by the provisional order or to
prevent substantial damage to any property of that
person.
(2)
An application may be made at any time and
whether or not the court is sitting.
27Obligation to apply for provisional order in certain
circumstances
(1)
An application must be made for a provisional
order if—
(a)
a police officer investigating the incident
concerned suspects or believes that—
(i)
a domestic violence offence or an offence against
section 13 has recently been or is being committed, or is imminent, or is
likely to be committed, against the person for whose protection an order would
be made, or
(ii)
an offence under section 227 (Child and young
person abuse) of the Children and Young Persons (Care and
Protection) Act 1998 (but only in relation to a child) has
recently been or is being committed, or is imminent, or is likely to be
committed, against the person for whose protection an order would be made,
or
(iii)
proceedings have been commenced against a person
for an offence referred to in subparagraph (i) or (ii) committed against the
person for whose protection an order would be made,
and
(b)
the police officer has good reason to believe an
order needs to be made immediately to ensure the safety and protection of the
person who would be protected by the order or to prevent substantial damage to
any property of that person.
(2)
The application may be made by any police
officer.
(3)
An application need not be made in the
circumstances referred to in subsection (1) if an apprehended violence order
is already in force against the defendant for the protection of the person
concerned.
(3A)
However, subsection (3) does not prevent an
application being made.
(4)
An application need not be made in the
circumstances referred to in subsection (1) if the person for whose protection
an order would be made is at least 16 years of age at the time of the incident
and a police officer investigating the incident believes—
(a)
that the person intends to make an application
for an apprehended violence order, or
(b)
that there is good reason not to make the
application.
(5)
However, if the police officer investigating the
incident believes that there is good reason not to make the application, the
police officer must make a written record of the reason.
(6)
For the purposes of subsection (4), the
reluctance of the person to make an application does not, on its own,
constitute a good reason for a police officer not to make an application if
the police officer reasonably believes that—
(a)
the person has been the victim of violence or
there is a significant threat of violence to the person,
or
(b)
the person has an intellectual disability and has
no guardian.
s 27: Am 2020 No 36,
Sch 1[3].
28Making of provisional order by authorised
officer
(1)
An authorised officer to whom an application is
made for a provisional order may, if satisfied that there are reasonable
grounds for doing so, make the provisional order.
(2)
Section 21 (Referral of matters to mediation)
applies to an authorised officer when considering whether to make a
provisional order that is an interim apprehended personal violence order or
after making such an order in the same way as it applies to a
court.
(3)
Section 81 applies to the making of a provisional
order by an authorised officer in the same way as that section applies to
other orders.
s 28: Am 2013 No 87,
Sch 1 [6]; 2016 No 55, Sch 3.6.
28AMaking of provisional order by senior police
officer
(1)
A senior police officer to whom an application is
made for a provisional order may, if satisfied that there are reasonable
grounds for doing so, make the provisional order.
(2)
However, a senior police officer may not make a
provisional order in circumstances where he or she is the applicant
officer.
(3)
The provisional order is to contain the address
or facsimile number of the Police Area Commander or Police District Commander
at which the defendant may serve an application for variation or revocation of
the order.
s 28A: Ins 2013 No
87, Sch 1 [7]. Am 2018 No 29, Sch 2.4.
28BInteraction with existing orders
(1)
This section applies if an apprehended violence
order is already in force against the defendant for the protection of the
person concerned (an existing
order).
(2)
An issuing officer must not make a prohibition or
restriction in a provisional order that would be inconsistent with a
prohibition or restriction in the existing order if the effect would be to
decrease the protection afforded to the protected person under the existing
order.
(3)
A prohibition or restriction specified in a
provisional order that is inconsistent with a prohibition or restriction
specified in the existing order in a way that would decrease the protection
afforded to the protected person under the existing order is of no
effect.
Note—
See section 81A for the effect of concurrent
orders if there is an inconsistency between 2 or more concurrent
orders.
s 28B: Ins 2020 No
36, Sch 1[4].
29Provisional order taken to be application for court
order
(1)
A provisional order is taken, for the purposes of
this Act, to be an application by the applicant officer under Part
10.
(2)
The provisional order is to contain a direction
for the appearance of the defendant at a hearing of the application by an
appropriate court on a date specified in the order by the issuing
officer.
(3)
The specified date must be—
(a)
the next date on which the matter can be listed
on a domestic violence list at the appropriate court, and
(b)
in any case, a date that is not more than 28 days
after the making of the provisional order.
(3A)
Failure to comply with the requirement under
subsection (3)(b) does not affect the validity of the provisional order if the
failure is due to court sitting arrangements that prevent the matter from
being heard by the appropriate court.
(4)
During the prescribed period, the reference to 28
days in subsection (3)(b) is taken to be a reference to 6
months.
(5)
In this section—
prescribed period
means the period—
(a)
starting on the commencement of subsection (4),
and
(b)
ending on—
(i)
the day that is 6 months after the commencement,
or
(ii)
the later day, not more than 12 months after the
commencement, prescribed by the regulations.
s 29: Am 2013 No 87,
Sch 1 [8]; 2020 No 1, Sch 2.6; 2020 No 36, Sch 1[5] [6].
30Recording of provisional order
(1)
The issuing officer who makes a provisional order
is to inform the applicant of the terms of the order and the date and time
when the order was made.
(2)
The applicant is to complete a form of order in
the terms so indicated and write on it the name of the issuing officer, the
date and time when the order was made and the date of the hearing of the
application.
(3)
When the form of order is completed, it is taken
to be a provisional order.
(4)
An issuing officer may, instead of proceeding
under subsection (1), furnish the provisional order to the
applicant.
(5)
An applicant who is furnished with a provisional
order under subsection (4) is to include in the order the date of the hearing
of the application.
s 30: Am 2013 No 87,
Sch 1 [9].
31Service
(1)
A provisional order is to be served personally on
the defendant by a police officer as soon as practicable after it is
made.
(2)
A provisional order is to be served personally on
the protected person by a police officer as soon as practicable after it is
made unless it is impractical to do so.
s 31: Am 2008 No 119,
Sch 1 [2].
32Duration
(1)
A provisional order remains in force
until—
(a)
it is revoked, or
(b)
it ceases to have effect under subsection (2),
or
(c)
the application under Part 10 is withdrawn or
dismissed,
whichever first occurs.
(2)
If an interim court order or final apprehended
violence order is made in respect of a provisional order (whether with or
without variation), the provisional order ceases to have effect—
(a)
in a case where the defendant is present at
court—when the interim court order or final apprehended violence order
is made, or
(b)
in any other case—when the defendant is
served in accordance with this Act with a copy of the interim court order or
final apprehended violence order.
s 32: Subst 2016 No
33, Sch 1 [14]. Am 2020 No 36, Sch 1[7].
33Variation or revocation of provisional order on application
of police officer
(1)
A provisional order made by an authorised officer
may be varied or revoked by—
(a)
the authorised officer who made it or any other
authorised officer, or
(b)
any court dealing with an application for an
apprehended violence order, or variation of an apprehended violence order,
against the same defendant.
(2)
A provisional order may be varied—
(a)
by amending or deleting any prohibitions or
restrictions specified in the order, or
(b)
by specifying additional prohibitions or
restrictions in the order.
(3)
An application for a variation or the revocation
of a provisional order under this section may be made only by a police
officer.
(4)
If there is more than one protected person under
a provisional order, the order may be varied or revoked in its application to
all of the protected persons or in relation to any one or more of the
protected persons.
(5)
Notice of the variation or revocation is to be
served on the defendant, each protected person affected by the variation or
revocation and the Commissioner of Police.
(6)
(7)
This section does not apply to the variation or
revocation of a provisional order in accordance with section
33A.
s 33: Am 2013 No 87,
Sch 1 [10]–[12]; 2016 No 33, Sch 1 [15]; 2020 No 36, Sch
1[8].
33AVariation or revocation of provisional order on application
of defendant
(1)
A provisional order made by a senior police
officer may be varied or revoked on the application of the defendant by any
court that deals, or is to deal, with an application for an apprehended
violence order, or variation of an apprehended violence order, against that
defendant.
(2)
Despite subsection (1), an application for
variation or revocation of a provisional order must be made by a police
officer if the protected person or one of the protected persons under the
order is a child at the time of the application.
(3)
Sections 73(1), (2), (4) and (6), 74(1) and (2),
76(2), (4) and (5) and 77(2)–(8) apply to the variation or revocation of
a provisional order under this section in the same way as they apply to the
variation or revocation of a final apprehended violence order or interim court
order.
(4)
In addition to the requirements of section 73(4),
a provisional order is not to be varied or revoked on the application of the
defendant under this section unless notice of the application has been served
on the Police Area Commander or Police District
Commander.
(5)
The applicant officer or another police officer
is entitled to appear in proceedings for a variation or revocation of the
provisional order under this section.
s 33A: Ins 2013 No
87, Sch 1 [13]. Am 2018 No 29, Sch 2.4; 2020 No 36, Sch 1[9].
34Purported renewal or continuance
(1)
A provisional order may not be renewed and a
further provisional order may not be made in respect of the same
incident.
(2)
If a court purports to renew or continue a
provisional order—
(a)
the order is taken to be an interim court order
made by the court at that time, and
(b)
further service of the order is not
required.
34ADefects in interim apprehended domestic violence
orders
(1)
This section applies if a senior police officer
has, in good faith, purported to make a provisional order as an interim
apprehended domestic violence order but none of the persons for whose
protection the order was made has or has had a domestic relationship with the
person against whom the order was sought.
(2)
If a provisional order has such a defect, no
action lies against any police officer or any other person merely because of
that defect in respect of anything done or omitted to be done by the police
officer or other person in good faith in reliance on the provisional order or
any ancillary property recovery order.
s 34A: Ins 2013 No
87, Sch 1 [14].
Part 8Content and effect of apprehended violence
orders
35Prohibitions and restrictions imposed by apprehended
violence orders
(1)
When making an apprehended violence order, a
court may impose such prohibitions or restrictions on the behaviour of the
defendant as appear necessary or desirable to the court and, in particular, to
ensure the safety and protection of the person in need of protection and any
children from domestic or personal violence.
(2)
Without limiting the generality of subsection
(1), an apprehended violence order made by a court may impose any or all of
the following prohibitions or restrictions—
(a)
prohibiting or restricting approaches by the
defendant to the protected person,
(b)
prohibiting or restricting access by the
defendant to any or all of the following—
(i)
to any premises occupied by the protected person
from time to time or to any specified premises occupied by the protected
person,
(ii)
to any place where the protected person works
from time to time or to any specified place of work of the protected
person,
(iii)
to any specified premises or place frequented by
the protected person,
whether or not the defendant has a legal or equitable
interest in the premises or place,
(c)
prohibiting or restricting the defendant from
approaching the protected person, or any such premises or place, within 12
hours of consuming intoxicating liquor or illicit drugs,
(c1)
prohibiting or restricting the defendant from
locating or attempting to locate the protected person,
(d)
prohibiting or restricting the possession of all
or any specified firearms or prohibited weapons (within the meaning of the
Weapons Prohibition Act 1998) by the
defendant,
(e)
prohibiting the defendant from interfering with
the protected person’s property,
(f)
prohibiting or restricting specified behaviour by
the defendant that might affect the protected
person.
(3)
A provisional order may impose any or all of the
prohibitions or restrictions specified in subsection (2)(a)–(e) if the
issuing officer is satisfied that there are reasonable grounds for the order
doing so and the defendant is not a child.
(4)
(5)
A reference in this section to a court includes a
reference to a Registrar.
Note—
Section 23 of the Firearms Act
1996 provides for the automatic suspension of a licence
under that Act on the making of an interim apprehended violence order against
the licence holder and section 24 of that Act provides for the automatic
revocation of a licence on the making of a final apprehended violence order
against the licence holder. Section 17 of the Weapons
Prohibition Act 1998 provides for the automatic suspension
of a permit under that Act on the making of an interim apprehended violence
order against the permit holder and section 18 of that Act provides for the
automatic revocation of a permit on the making of a final apprehended violence
order against the permit holder. On the suspension or revocation of such
licences or permits, the relevant firearms or weapons must be surrendered to
the police and may be seized by the police.
Note—
Section 79 of the Residential
Tenancies Act 2010 terminates the tenancy of a tenant or
co-tenant under a residential tenancy agreement if a final apprehended
violence order is made that prohibits the tenant or co-tenant from having
access to the residential premises under the agreement.
s 35: Am 2008 No 119,
Sch 1 [3]–[5]; 2010 No 42, Sch 3.3; 2013 No 87, Sch 1 [15] [16]; 2016 No
33, Sch 1 [16]; 2020 No 36, Sch 1[10].
36Prohibitions taken to be specified in every apprehended
violence order
Every apprehended violence order is taken to
specify that the defendant is prohibited from doing any of the
following—
(a)
assaulting or threatening the protected person or
a person with whom the protected person has a domestic
relationship,
(b)
stalking, harassing or intimidating the protected
person or a person with whom the protected person has a domestic
relationship,
(c)
intentionally or recklessly destroying or
damaging any property, or harming an animal, that belongs to, or is in the
possession of, the protected person or a person with whom the protected person
has a domestic relationship.
s 36: Subst 2016 No
33, Sch 1 [17]. Am 2020 No 36, Sch 1[11].
37Ancillary property recovery orders may be
made
(1)
A property recovery order may be made by a court
or authorised officer—
(a)
when making an apprehended domestic violence
order or interim apprehended domestic violence order, or
(b)
in relation to an interim apprehended domestic
violence order that has been made by a senior police
officer.
(1A)
A court or authorised officer may make a property
recovery order only if satisfied that—
(a)
the protected person has left personal property
at premises which the defendant occupies, or
(b)
the defendant has left personal property at
premises which the protected person occupies.
(1B)
A property recovery order may be made under this
section—
(a)
on the motion of a court or authorised officer
when making an apprehended domestic violence order or interim apprehended
domestic violence order, or
(b)
on the application of a police officer, the
protected person or the defendant.
(1C)
An application for a property recovery order made
by a protected person or a defendant must include details of the
following—
(a)
any relevant order with respect to property made
under the Family Law Act 1975 of the Commonwealth
(a family law property
order) of which the applicant is aware,
(b)
any pending application for a family law property
order of which the applicant is aware.
(1D)
Before making a property recovery order, a court
or authorised officer is to—
(a)
make such inquiries of the parties about any
relevant family law property orders as the court or officer considers to be
appropriate, and
(b)
if any such order is brought to the attention of
the court or authorised officer, take the order into
consideration.
(2)
A property recovery order may do any or all of
the following—
(a)
direct the person who occupies the premises
concerned to allow access to the premises to the person who has left the
personal property at the premises (and any police officer or person who is
authorised by the order to accompany the person) to enable the removal of the
property,
(b)
provide that the access to the premises concerned
is to be at a time or times arranged between the occupier of the premises and
a police officer (whether or not the order requires the person recovering the
property to be accompanied by a police officer),
(c)
require the person who has left the personal
property at the premises to be accompanied by a police officer when removing
the property from the premises,
(d)
provide that the person who has left the personal
property at the premises may be accompanied by any other specified
person,
(e)
specify the type or types of property to which
the order relates.
(3)
A property recovery order does not authorise
entry to any premises by means of force.
(4)
A property recovery order does not confer any
right on a person to take property that the person does not own or have a
legal right to possess even if the type of property is specified in the
order.
(5)
A property recovery order in respect of personal
property left by the defendant on premises may not be made in the absence of
the defendant.
(6)
A person must not, without reasonable excuse,
contravene a property recovery order or obstruct a person who is attempting to
comply with a property recovery order.
Maximum penalty—50 penalty
units.
(7)
The onus of proof of reasonable excuse in
proceedings for an offence against subsection (6) lies on the person accused
of the offence.
s 37: Am 2008 No 119,
Sch 1 [6]; 2013 No 87, Sch 1 [17]; 2016 No 33, Sch 1 [18].
Part 9Additional measures for support and protection of children and
others in proceedings
38Apprehended violence orders made by court or authorised
officer can also protect persons with whom person seeking protection has a
domestic relationship
(1)
The power of a court or an issuing officer under
this Act to make an apprehended violence order for the protection of a person
extends to authorise the making of such an order for the protection of a
person with whom the person for whose protection the order was sought has a
domestic relationship.
(2)
If the court makes an apprehended domestic
violence order, or the court or issuing officer makes an interim apprehended
domestic violence order, for the protection of a person of or above 18 years
of age, the court or issuing officer must include as a protected person under
the order any child with whom the person of or above 18 years of age has a
domestic relationship.
(3)
A court or issuing officer is not required to
comply with subsection (2) if satisfied that there are good reasons for not
doing so. However, in that case the court or issuing officer is to give the
reasons for not doing so.
(4)
For the avoidance of doubt, subsections (2) and
(3) are subject to sections 41, 41AA and 42.
(5)
An apprehended violence order may be made by a
court for the protection of a child in accordance with this section even
though an application for the order was not made by a police
officer.
s 38: Subst 2008 No
119, Sch 1 [7]. Am 2013 No 87, Sch 1 [9]; 2018 No 88, Sch 2
[1].
39Final order to be made on guilty plea or guilt finding for
serious offence
(1)
This section applies to a person who pleads
guilty to, or is found guilty of, a serious offence.
(1A)
A court must make a final apprehended violence
order for the protection of the person against whom the offence was committed
whether or not—
(a)
an interim apprehended violence order has been
made, or
(b)
an application for an apprehended violence order
has been made.
(2)
However, the court need not make a final
apprehended violence order if it is satisfied that it is not required (for
example, because a final apprehended violence order has already been made
against the person).
(2A)
For an apprehended domestic violence order
imposed by a court under this section, subsections (2B)–(2D) apply if
the person—
(a)
was at least 18 years of age at the time of the
commission of the offence, and
(b)
is sentenced to a term of imprisonment, other
than by way of intensive correction in the community, for the
offence.
(2B)
Subject to subsection (2C), the court is to
specify that the apprehended domestic violence order remains in force
for—
(a)
the period of the term of imprisonment for the
offence, and
(b)
an additional 2 years after the term of
imprisonment ends.
(2C)
The court may specify a different period if, in
the opinion of the court, there is a good reason to impose a different
period.
(2D)
The date on which the apprehended domestic
violence order comes into force may be a day before the day the person starts
serving the person’s term of imprisonment.
(3)
In this section—
court includes the District
Court.
serious offence has the
same meaning as in section 40.
s 39: Am 2014 No 2,
Sch 6.1 [2]. Subst 2016 No 33, Sch 1 [19]. Am 2020 No 36, Sch 1[12]
[13].
40Interim apprehended violence order must be made on charge
for certain offences
(1)
When a person is charged with an offence that
appears to the court to be a serious offence, the court must make an interim
court order against the defendant for the protection of the person against
whom the offence appears to have been committed whether or not an application
for an order has been made.
(2)
If an interim court order is made by the court,
the court is to summon the defendant to appear at a further hearing of the
matter on the determination of the charge against the person (instead of as
soon as practicable after the order is made, as required by section
22(5)(a)).
(3)
However, the court need not make an interim court
order if it is satisfied that it is not required (for example, because an
apprehended violence order has already been made against the
person).
(4)
The transcript of proceedings and any evidence
admitted in the District Court or the Supreme Court in respect of a serious
offence is admissible in the Local Court or Children’s Court for the
purposes of determining any one or more of the following—
(a)
an application for the variation or revocation of
an interim court order made under this section in respect of the serious
offence,
(b)
an application for a final apprehended violence
order to be made in respect of any such interim court
order,
(c)
an application for the variation or revocation of
any such final apprehended violence order.
(4A)
In this section court includes the District
Court and the Supreme Court.
(5)
In this section, a serious offence
means—
(a)
attempted murder, or
(b)
a domestic violence offence (other than murder,
manslaughter or an offence under section 25A of the Crimes Act 1900), or
(c)
an offence under, or mentioned in, section 33,
35, 61I, 61J, 61JA, 61K, 61KC, 61KD, 61L, 61M, 63, 65, 66A, 66B, 66C, 66D,
66DA, 66DB, 66EA or 66F of the Crimes Act
1900, or
(d)
an offence of attempting to commit an offence
referred to in paragraph (b) or (c), or
(e)
an offence under section 13,
or
(f)
an offence under the law of the Commonwealth,
another State or a Territory or of another country that is similar to an
offence referred to in paragraph (a), (b), (c), (d) or
(e).
s 40: Am 2014 No 2,
Sch 6.1 [2]; 2016 No 33, Sch 1 [20]; 2018 No 33, Sch 5.4
[4]–[5].
40AApprehended violence order may be made in care
proceedings
(1)
The Children’s Court may, during care
proceedings, make an apprehended violence order for the protection
of—
(a)
the child to whom the care proceedings relate,
or
(b)
any person who is a relative of, or who resides
on the same property as, the child,
or may vary or revoke any existing order that protects
any of those persons.
(2)
The Children’s Court may make, vary or
revoke an order on the application of a party to the care proceedings or on
its own motion if the Court considers that the circumstances justify making,
varying or revoking the order.
(3)
The Children’s Court is not to make or vary
an order under this section that protects a person if the Court is aware that
the defendant is subject to criminal proceedings before another court and
those criminal proceedings arose out of some or all of the circumstances that
justify the making of the order.
(4)
Before making, varying or revoking an order under
this section, the Children’s Court is to notify the Commissioner of
Police and the Secretary of the Department of Family and Community Services
and give the Commissioner and Secretary standing to appear in the
proceedings.
(5)
Before varying or revoking a police-initiated
order under this section the Children’s Court is to notify the
Commissioner of Police and give the Commissioner standing to appear in the
proceedings.
(6)
Sections 48(3) and 72B do not apply to an
application made under subsection (2).
(7)
The parties to the care proceedings and the
defendant against whom the apprehended violence order is proposed to be made
all have standing to appear in respect of the making of the apprehended
violence order.
(8)
Subject to the regulations, section 91 (Appeals)
of the Children and Young Persons (Care and
Protection) Act 1998 applies to an apprehended violence
order made under this section.
(9)
In this section—
care proceedings has
the same meaning as in the Children and Young Persons
(Care and Protection) Act 1998.
child includes a young person
within the meaning of the Children and Young Persons (Care and
Protection) Act 1998.
police-initiated
order has the same meaning as in Part 10.
relative of a child has the
same meaning as in the Children and Young Persons (Care and
Protection) Act 1998.
reside on a
property has the same meaning as in the Child Protection (Working with Children) Act
2012.
s 40A: Ins 2016 No
33, Sch 1 [21]. Am 2018 No 34, Sch 3.4; 2020 No 36, Sch
1[14].
41Measures to protect children in
proceedings
(1)
This section applies to the following proceedings
or part of proceedings—
(a)
proceedings in which an apprehended violence
order is sought or proposed to be made for the protection of a
child,
(b)
proceedings in relation to an application for the
variation or revocation of an apprehended violence order if the protected
person or one of the protected persons is a child,
(c)
any part of proceedings in which an apprehended
violence order is sought or proposed to be made in which a child appears as a
witness,
(d)
any part of proceedings in relation to an
application for the variation or revocation of an apprehended violence order
in which a child appears as a witness,
(e)
any part of proceedings under Part 13B for the
variation or revocation of a recognised non-local DVO or for a declaration
that a DVO is a recognised DVO in which a child appears as a
witness,
(f)
proceedings in which an apprehended violence
order is sought or proposed to be made against a child,
(g)
proceedings in relation to an application for the
variation or revocation of an apprehended violence order made against a
child.
(2)
Proceedings or any part of proceedings to which
this section applies are to be heard in the absence of the public unless the
court hearing the proceedings otherwise directs.
(3)
Even if proceedings or a part of proceedings to
which this section applies are open to the public, the court hearing the
proceedings may direct any person (other than a person who is directly
interested in the proceedings) to leave the place where the proceedings are
being heard during the examination of any witness.
(4)
In any proceedings referred to in subsection
(1)(a), (b), (c) or (d), a child should not be required to give evidence in
any manner about a matter unless the court is of the opinion that it is in the
interests of justice for the child to do so.
(5)
If a child is required to give evidence under
this section, the evidence should be required to be given only in accordance
with Divisions 3 and 4 of Part 6 of Chapter 6 of the Criminal Procedure Act
1986.
(6)
For the purposes of subsection (5), Division 3 of
Part 6 of Chapter 6 of the Criminal Procedure Act
1986 applies to proceedings in relation to an application
for an apprehended violence order, or a variation or revocation of such an
order, in the same way as it applies to criminal
proceedings.
s 41: Am 2016 No 9,
Sch 1 [3]; 2018 No 29, Sch 1.6.
41AAMeasures to protect young persons in
proceedings
(1)
The following proceedings or parts of proceedings
are to be heard in the absence of the public, unless the court hearing the
proceedings otherwise directs—
(a)
proceedings in which an apprehended violence
order is sought or proposed to be made for the protection of a young
person,
(b)
proceedings in relation to an application for the
variation or revocation of an apprehended violence order, if the protected
person or one of the protected persons is a young person,
(c)
any part of proceedings in which an apprehended
violence order is sought or proposed to be made in which a young person
appears as a witness,
(d)
any part of proceedings in relation to an
application for the variation or revocation of an apprehended violence order
in which a young person appears as a witness,
(e)
any part of proceedings under Part 13B for the
variation or revocation of a recognised non-local DVO or for a declaration
that a DVO is a recognised DVO in which a young person appears as a
witness,
(f)
proceedings in which an apprehended violence
order is sought or proposed to be made against a young
person,
(g)
proceedings in relation to an application for the
variation or revocation of an apprehended violence order made against a young
person.
(2)
In this section—
young person means a
person who is 16 years of age or over but who is under the age of 18
years.
s 41AA: Ins 2018 No
88, Sch 2 [2].
41AQuestioning child witness in apprehended domestic violence
order proceedings
(1)
A child who appears as a witness in any of the
following proceedings cannot be questioned by a defendant directly but only by
the defendant’s Australian legal practitioner or other Australian legal
practitioner or a suitable person appointed by the court—
(a)
proceedings in which an apprehended domestic
violence order is sought or proposed to be made,
(b)
proceedings in relation to an application for the
variation or revocation of an apprehended domestic violence
order.
(2)
This section applies in addition to the
protections set out in section 41.
s 41A: Ins 2016 No
33, Sch 1 [22].
42Consideration of contact with children
(1)
A person who applies for, or for a variation of,
a final apprehended violence order or interim court order must inform the
court of—
(a)
any relevant parenting order of which the person
is aware, or
(b)
any pending application for a relevant parenting
order of which the person is aware.
The court is required to inform the applicant of
the obligation of the applicant under this subsection.
(2)
In deciding whether or not to make or vary a
final apprehended violence order or interim court order, the court is to
consider the safety and protection of the protected person and any child
directly or indirectly affected by domestic or personal
violence.
(3)
Without limiting subsection (2), in deciding
whether or not to make or vary a final apprehended violence order or interim
court order, the court is to—
(a)
consider whether contact between the protected
person, or between the defendant, and any child of either of those persons is
relevant to the making or variation of the order, and
(b)
have regard to any relevant parenting order of
which the court has been informed.
(4)
A final apprehended violence order or interim
court order, or a variation of such an order, is not invalid merely because of
a contravention of this section.
(5)
In this section, relevant parenting
order means a parenting order (within the meaning of
Division 5 of Part VII of the Family Law Act
1975 of the Commonwealth) that relates to contact between
the protected person, or between the defendant, and any child of either of
those persons.
43Non-inclusion of protected person’s residential
address in applications or orders
(1)
The address at which the protected person resides
must not be stated in an application for an apprehended domestic violence
order or interim apprehended domestic violence order or an application under
Part 13B for the variation or revocation of a recognised non-local DVO or for
a declaration that a DVO is a recognised DVO unless—
(a)
where the protected person is of or above the age
of 16 years—the protected person consents to the address being included
in the application, or
(b)
where the application is made by a police
officer—the police officer is satisfied that the defendant knows the
address.
(2)
The address at which the protected person
resides, or intends to reside, must not be stated in an apprehended domestic
violence order or interim apprehended domestic violence order or in a
declaration under Part 13B that a DVO is a recognised DVO unless the court or
issuing officer is satisfied that—
(a)
the defendant knows the address,
or
(b)
it is necessary to state the address in order to
achieve compliance with the order and the personal safety of the protected
person would not be seriously threatened, or damage would not be likely to be
caused to any property of the protected person, by stating the address,
or
(c)
where the protected person is of or above the age
of 16 years—the protected person consents to the address being stated in
the order.
(3)
A reference in this section to an apprehended
domestic violence order or interim apprehended domestic violence order
includes a reference to any other order relating to such an
order.
(4)
In this section, court includes a
Registrar.
s 43: Am 2013 No 87,
Sch 1 [9]; 2016 No 9, Sch 1 [4] [5].
44Non-inclusion of health care provider’s residential
address in application for apprehended personal violence order or in
apprehended personal violence order
(1)
The address at which a protected health care
provider resides must not be stated in any application for an apprehended
personal violence order or interim apprehended personal violence order
unless—
(a)
the protected health care provider consents to
the address being included in the application, or
(b)
if the application is made by a police
officer—the police officer is satisfied that the defendant knows the
address.
(2)
The address at which a protected health care
provider resides, or intends to reside, must not be stated in an apprehended
personal violence order or interim apprehended personal violence order unless
the court or issuing officer is satisfied that—
(a)
the defendant knows the address,
or
(b)
it is necessary to state the address in order to
achieve compliance with the order and the personal safety of the protected
health care provider would not be seriously threatened, or damage would not be
likely to be caused to any property of the protected health care provider, by
stating the address, or
(c)
the protected health care provider consents to
the address being stated in the order.
(3)
If the address at which a protected health care
provider resides or intends to reside must not be stated in an application or
order because of this section, the address at which the protected health care
provider ordinarily provides health care services is to be stated instead in
the application or order.
(4)
A reference in this section to an apprehended
personal violence order or interim apprehended personal violence order
includes a reference to any other order relating to such an
order.
(5)
In this section—
court includes a
Registrar.
protected health care
provider means a person who is employed or engaged to
provide any care, treatment, advice or service in respect of the physical or
mental health of any protected person.
s 44: Am 2013 No 87,
Sch 1 [9].
45Publication of names and identifying information about
children and other persons involved in proceedings
(1)
The name of a person, being a child—
(a)
for whose protection or against whom an
apprehended violence order is sought in any apprehended violence order
proceedings, or
(b)
who appears, or is reasonably likely to appear,
as a witness before a court in any apprehended violence order proceedings,
or
(c)
who is, or is reasonably likely to be, mentioned
or otherwise involved in any apprehended violence order
proceedings,
must not be published or broadcast before the
proceedings are commenced or after the proceedings have been commenced and
before they are disposed of.
(2)
A court may direct that the name of a person
(other than a child to whom subsection (1) applies)—
(a)
for whose protection or against whom an
apprehended violence order is sought in any apprehended violence order
proceedings, or
(b)
who appears, or is reasonably likely to appear,
as a witness before a court in any apprehended violence order proceedings,
or
(c)
who is, or is reasonably likely to be, mentioned
or otherwise involved in any apprehended violence order
proceedings,
must not be published or broadcast before the
proceedings are commenced or after the proceedings have been commenced and
before they are disposed of.
(3)
A person who publishes or broadcasts the name of
a person in contravention of subsection (1) or in contravention of a direction
under subsection (2) is guilty of an offence.
Maximum penalty—Imprisonment for a period
not exceeding 2 years, or 200 penalty units, or both (in the case of an
individual) or 2,000 penalty units (in the case of a
corporation).
(4)
This section does not prohibit—
(a)
the publication or broadcasting of an official
report of the proceedings of a court that includes the name of any person the
publication or broadcasting of which would otherwise be prohibited by this
section, or
(b)
the publication or broadcasting of the name of a
person with the consent of the person or of the
court.
(5)
For the purposes of this section, a reference to
the name of a person includes a reference to any information, picture or other
material—
(a)
that identifies the person,
or
(b)
that is likely to lead to the identification of
the person.
(6)
The offence created by this section is an offence
of strict liability.
(7)
A court may vary or revoke a direction given by a
court under this section. However, only the District Court may vary or revoke
a direction given by the District Court.
(8)
In this section—
apprehended violence
order proceedings include proceedings under Part 13B for the
variation or revocation of a recognised non-local DVO or for a declaration
that a DVO is a recognised DVO.
court includes a
Registrar.
s 45: Am 2016 No 9,
Sch 1 [6].
46Right to presence of supportive person when giving
evidence
(1)
In this section, party to apprehended violence
order proceedings means the person for whose protection the relevant order is
sought or the defendant.
(2)
A party to apprehended violence order proceedings
is entitled to choose a person whom the party would like to have present near
him or her when giving evidence.
(3)
Without limiting a party’s right to choose
such a person, that person—
(a)
may be a parent, guardian, relative, friend or
support person of the party, and
(b)
may be with the party as an interpreter, for the
purpose of assisting the party with any difficulty in giving evidence
associated with a disability, or for the purpose of providing the party with
other support.
(4)
To the extent that the court considers it
reasonable to do so, the court must make whatever direction is appropriate to
give effect to a party’s decision to have such a person present near the
party, and within the party’s sight, when the party is giving
evidence.
(5)
The court may permit more than one support person
to be present with the party if the court thinks that it is in the interests
of justice to do so.
Note—
Section 306ZK of the Criminal
Procedure Act 1986 contains similar provisions to section
46 of this Act in relation to the giving of evidence in apprehended violence
order proceedings by vulnerable persons, that is children and intellectually
impaired persons.
Section 294B of the Criminal
Procedure Act 1986 enables a protected person in
apprehended violence order proceedings who is the alleged victim of a
prescribed sexual offence (within the meaning of that Act) by the defendant to
give evidence from a place other than the courtroom by means of closed-circuit
television facilities or other communication facilities or to give evidence in
the courtroom if certain measures have been taken to restrict contact with the
accused person.
Part 11Warrants and powers of police to detain
defendants
88Warrant for arrest of defendant in final apprehended
violence order matters
(1)
If an application for a final apprehended
violence order is made, an authorised officer may issue a warrant for the
arrest of the defendant.
(2)
The authorised officer may issue a warrant for
the arrest of the defendant even though the defendant is not alleged to have
committed an offence.
(3)
The authorised officer must issue a warrant for
the arrest of the defendant if it appears to the authorised officer that the
personal safety of the person for whose protection the order is sought will be
put at risk unless the defendant is arrested for the purpose of being brought
before the court.
(4)
A warrant may not be executed more than 12 months
after the date on which it is issued, unless the court otherwise orders before
the end of the 12-month period.
89Detention of defendant for making and service of interim
apprehended personal violence order
(1)
A police officer who is making or is about to
make an application for a provisional order that is an interim apprehended
personal violence order may give either of the following directions to the
person against whom the order is sought—
(a)
that the person remain at the scene where the
incident occurred that was the reason for making the
application,
(b)
in a case where the person has left the scene of
that incident—that the person remain at another place where the police
officer locates the person.
(2)
If a person refuses or fails to comply with a
direction under this section, the police officer who gave the direction or
another police officer may detain the person at the scene of the incident or
other place, or detain the person and take the person to a police
station.
s 89: Subst 2013 No
87, Sch 1 [19].
89ADetention of defendant for making and service of interim
apprehended domestic violence order
(1)
A police officer who is making or is about to
make an application for a provisional order that is an interim apprehended
domestic violence order may give any of the following directions to the person
against whom the order is sought—
(a)
that the person remain at the scene where the
incident occurred that was the reason for making the
application,
(b)
in a case where the person has left the scene of
that incident—that the person remain at another place where the police
officer locates the person,
(c)
that the person go to and remain at another place
that has been agreed to by the person,
(d)
that the person go to and remain at a specified
police station,
(e)
that the person accompany a police officer to a
police station and remain at the police station,
(f)
that the person accompany a police officer to
another place that has been agreed to by the person, or to another place
(whether or not agreed to by the person) for the purpose of receiving medical
attention, and remain at that other place.
(2)
If a person refuses or fails to comply with a
direction under this section, the police officer who gave the direction or
another police officer may detain the person at the scene of the incident or
other place, or detain the person and take the person to a police
station.
(3)
If a direction is given under subsection (1)(e)
or (f), the police officer may detain the person in the vehicle in which the
person accompanies the police officer to the police station or other place for
so long as is necessary to transport the person to the police station or other
place.
(4)
In considering whether to detain a person under
subsection (3), a police officer may have regard to the following
matters—
(a)
the need to ensure the safety of the person for
whose protection the interim apprehended domestic violence order is sought,
including the need to—
(i)
ensure the service of the order,
and
(ii)
remove the defendant from the scene of the
incident, and
(iii)
prevent substantial damage to
property,
(b)
the circumstances of the
defendant,
(c)
any other relevant
matter.
s 89A: Ins 2013 No
87, Sch 1 [19].
89BDetention of defendant where recognised domestic violence
order may be in force
(1)
A police officer who has grounds to make an
application for a provisional order against a person may, for the purposes of
ascertaining whether there is already a non-local domestic violence order in
force against the person or obtaining a copy of any such order (or both), give
any of the following directions to the person—
(a)
that the person remain at the scene where the
relevant incident occurred,
(b)
in a case where the person has left the scene of
that incident—that the person remain at another place where the police
officer locates the person,
(c)
that the person go to and remain at another place
that has been agreed to by the person,
(d)
that the person go to and remain at a specified
police station,
(e)
that the person accompany a police officer to a
police station and remain at the police station,
(f)
that the person accompany a police officer to
another place that has been agreed to by the person, or to another place
(whether or not agreed to by the person) for the purpose of receiving medical
attention, and remain at that other place.
(2)
If a person refuses or fails to comply with a
direction under this section, the police officer who gave the direction or
another police officer may detain the person at the scene of the relevant
incident or other place, or detain the person and take the person to a police
station.
(3)
If a direction is given under subsection (1)(e)
or (f), the police officer may detain the person in the vehicle in which the
person accompanies the police officer to the police station or other place for
so long as is necessary to transport the person to the police station or other
place.
(4)
In considering whether to detain a person under
subsection (3), a police officer may have regard to the following
matters—
(a)
the need to ensure the safety of the person who
would be protected by the provisional order, including the need
to—
(i)
remove the defendant from the scene of the
relevant incident, and
(ii)
prevent substantial damage to
property,
(b)
the circumstances of the
defendant,
(c)
any other relevant
matter.
s 89B: Ins 2017 No
44, Sch 1.6 [8].
90Detention of defendant for service of order or
variation
(1)
A police officer who reasonably suspects that a
person is the defendant in relation to an apprehended violence order may
direct the person to remain where the person is for the purpose only of
serving on the person a copy of the order, or a variation of the order, that
is required to be served personally under this Act.
(1A)
A police officer who reasonably suspects that a
person is a defendant under a non-local domestic violence order may direct the
person to remain where the person is for the purpose only of serving on the
person a copy of the order, or a variation of the order, if the law of the
jurisdiction in which the order or variation was made requires the order or
variation to be served personally.
(2)
If a person refuses or fails to comply with a
direction under this section, the police officer who gave the direction or
another police officer may detain the person at the place where the person is,
or detain the person and take the person to a police station, for the purpose
only of serving the order or variation on the person.
Note—
Division 1A of Part 3 of the Law Enforcement (Powers and Responsibilities) Act
2002 enables a police officer to require the name of a
person who the police officer suspects on reasonable grounds may be the
defendant in relation to an apprehended violence order. Section 87 of that Act
provides that if a police officer enters a dwelling under a power conferred by
that Act and believes on reasonable grounds that a dangerous article or
dangerous implement that may have been used or may be used to commit a
domestic violence offence is in the dwelling, the police officer may search
for the article or implement and seize and detain it.
s 90: Am 2013 No 87,
Sch 1 [20]; 2017 No 44, Sch 1.6 [9].
90APeriod for which person may be directed to remain or be
detained
(1)
A person may be directed under this Part to
remain at a place for as long as is reasonably necessary for—
(a)
in the case of a direction under section 89 or
89A—the application for the provisional order to be made and the
provisional order to be served on the person, or
(a1)
in the case of a direction under section
89B—a police officer to ascertain whether a non-local domestic violence
order is in force against the person or to obtain a copy of any such order (or
both), or
(b)
in the case of a direction under section
90—a copy of the apprehended violence (or the non-local domestic
violence order) order or variation of the order to be served on the
person.
(2)
A person may be detained under this Part for no
longer than—
(a)
the time it takes for—
(i)
in the case of detention under section 89 or
89A—the application for the provisional order to be made and the
provisional order to be served on the person, or
(ia)
in the case of detention under section
89B—a police officer to ascertain whether a non-local domestic violence
order is in force against the person or to obtain a copy of any such order (or
both), or
(ii)
in the case of detention under section 90—a
copy of the apprehended violence order (or the non-local domestic violence
order) or variation of the order to be served on the person,
or
(b)
2 hours (excluding any reasonable amount of time
for travel to the place or police station),
whichever is the lesser.
s 90A: Ins 2013 No
87, Sch 1 [21]. Am 2017 No 44, Sch 1.6 [10]–[13].
90BDetention of person at police station or other place or in
vehicle
(1)
A person who is detained under this Part at a
police station or other place or in a vehicle may be detained there by any
police officer.
(2)
As far as is reasonably practicable, a person who
is detained under this Part at a police station—
(a)
must be given an opportunity by the person in
charge of the police station to contact a friend, relative, guardian or
independent person (other than a protected person), and
(b)
must be kept separately from any person detained
at the police station in connection with the commission or alleged commission
of an offence, and
(c)
if the person is apparently under the age of 18
years—must be kept separately from any person over that age detained at
the police station, and
(d)
must not be detained in a cell at the police
station unless it is necessary to do so, and
(e)
must be provided with necessary food, drink,
bedding and blankets appropriate to the person’s
needs.
(3)
As far as is reasonably practicable, a person who
is detained under this Part in a place other than a police station or
vehicle—
(a)
must be given an opportunity by the person in
charge of the place to contact a friend, relative, guardian or independent
person (other than a protected person), and
(b)
must be provided with necessary food, drink,
bedding and blankets appropriate to the person’s
needs.
(4)
As far as is reasonably practicable, a person who
is to be detained under this Part in a vehicle must be given an opportunity by
the person in charge of the vehicle to contact a friend, relative, guardian or
independent person (other than a protected person) before being detained in
the vehicle.
ss 90B–90D: Ins
2013 No 87, Sch 1 [21].
90CSearching detained persons
(1)
A police officer by whom a person is detained
under this Part may—
(a)
conduct a search of the person or of articles in
the possession of the person that may include—
(i)
requiring the person to remove only his or her
overcoat, coat or jacket or similar article of clothing and any gloves, shoes,
socks and hat, and
(ii)
an examination of those items,
and
(b)
take possession of any personal belongings found
in the person’s possession.
(2)
A person is entitled to the return of the
personal belongings taken from the person under this section when the person
ceases to be detained under this Part.
ss 90B–90D: Ins
2013 No 87, Sch 1 [21].
90DRecords required to be kept
(1)
Records must be made in accordance with the
regulations in relation to the detention of a person under this
Part.
(2)
A person who has custody of a record required to
be made by this section must retain the record for a period of 3 years after
it is made.
(3)
A person who has the custody of a record made
under this section must, when required to do so by a person authorised by the
Minister for the purposes of this subsection, make it available for inspection
by that person.
(4)
This section does not require a person to make a
record of a matter in relation to the detention or search of a person, if
another person has already made a record of that matter as required by this
section.
ss 90B–90D: Ins
2013 No 87, Sch 1 [21].
Part 14Miscellaneous
99Costs
(1)
In this section—
professional costs
means costs relating to professional expenses and disbursements (including
witnesses’ expenses) in respect of proceedings before a court (but not
court fees payable to a court).
(2)
Costs, other than professional costs, are not to
be awarded in apprehended violence order proceedings.
(3)
A court may, subject to section 99A, award
professional costs in apprehended violence order proceedings to the applicant
for the order or decision concerned or the defendant in accordance with this
section.
(4)
If professional costs are awarded against a
person under this section, the costs must be paid by the person to the
registrar of the court, for payment to—
(a)
the defendant, in the case of costs awarded
against an applicant, or
(b)
the applicant, in the case of costs awarded
against a defendant.
(5)
A court may make an order as to professional
costs at the end of apprehended violence order proceedings or following the
adjournment of the proceedings.
(6)
An order as to professional costs may be made
following the adjournment of the proceedings only if the court is satisfied
that the other party has incurred additional costs because of the unreasonable
conduct or delays of the party against whom the order is
made.
(7)
An order as to professional costs made following
the adjournment of proceedings may be made whatever the result of the
proceedings and may provide for the determination of the amount at the end of
the proceedings.
(8)
An order as to professional costs may specify the
amount of any professional costs payable or may specify that it is to be the
amount as agreed or assessed.
(9)
The State is to indemnify a police officer, who
acts in his or her capacity as a police officer in apprehended violence order
proceedings, for any professional costs awarded against the police officer
personally.
(10)
This section applies to apprehended violence
order proceedings, including apprehended violence order proceedings conducted
in the absence of one or more of the parties.
s 99: Am 2008 No 53,
Sch 8 [7]. Subst 2016 No 33, Sch 1 [34].
99ALimitations on professional costs being
awarded
(1)
A court cannot, in apprehended violence order
proceedings, award professional costs against an applicant who is a protected
person in respect of the order unless satisfied that the application was
frivolous or vexatious.
(2)
A court cannot, in apprehended domestic violence
order proceedings, award professional costs against an applicant who is a
police officer unless satisfied that—
(a)
the applicant made the application knowing it
contained matter that was false or misleading in a material particular,
or
(b)
the applicant has deviated from the reasonable
case management of the proceedings so significantly as to be
inexcusable.
(3)
The mere fact that a protected person does any
one or more of the following in relation to apprehended domestic violence
order proceedings does not give rise to a ground to award costs against an
applicant who is a police officer and who made the application in good
faith—
(a)
indicating that he or she will give unfavourable
evidence,
(b)
indicating that he or she does not want an
apprehended domestic violence order or that he or she has no
fears,
(c)
giving unfavourable evidence or failing to attend
to give evidence.
(4)
This section has effect despite section 99 or any
other provision of this or any other Act or law.
(5)
In this section—
apprehended
domestic violence order proceedings means proceedings under
this Act in relation to an apprehended domestic violence order or an
application for an apprehended domestic violence order.
professional costs
has the same meaning as in section 99.
s 99A: Ins 2016 No
33, Sch 1 [34].
100Parts 2 and 3 of Crimes (Appeal and Review)
Act 2001
Except as expressly provided by this Act, nothing
in this Act affects the operation that Parts 2 and 3 of the Crimes (Appeal and Review) Act 2001
would have if this Act had not been enacted.
101Regulations
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
102Savings, transitional and other
provisions
Schedule 1 has effect.
103
s 103: Rep 2008 No
114, Sch 4.
104Review of Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 3 years from the date of assent to this
Act.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 3 years.