FAMILY AND PERSONAL VIOLENCE LEGISLATION AMENDMENT BILL 2017

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This is a Bill, not an Act. For current law, see the Acts databases.

FAMILY AND PERSONAL VIOLENCE LEGISLATION AMENDMENT BILL 2017

2017

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

Family and Personal Violence Legislation Amendment Bill 2017

Contents

Page

2017

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

Family and Personal Violence Legislation Amendment Bill 2017

A Bill for

An Act to amend legislation about family and personal violence, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1 Preliminary

1 Name of Act

This Act is the Family and Personal Violence Legislation Amendment Act 2017

2 Commencement

(1) This Act (other than the following provisions) commences on 30 April 2017:

• sections 58 to 61

• sections 63 and 64.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act

, s 75 (1)).

(2) The provisions mentioned in subsection (1) commence on the commencement of the Family Violence Act 2016

, section 115 (Definitions—pt 9).

3 Legislation amended

This Act amends the following legislation:

• Evidence (Miscellaneous Provisions) Act 1991

• Family Violence Act 2016

• Personal Violence Act 2016

Part 2 Evidence (Miscellaneous Provisions) Act 1991

4 Division 4.3.3 heading

substitute

Division 4.3.3 Recorded statement of police interview admissible as evidence—family violence offence proceedings

5 Recorded statement—offence to publish

Section 81G (2)

substitute

(2) For this section, a person has authority to publish a recorded statement only if the person publishes the recorded statement in connection with—

(a) the investigation of, or a proceeding for, an offence in relation to which the recorded statement is prepared; or

(b) a re-hearing, re-trial or appeal in relation to the proceeding; or

if—

(i) the affected person in relation to the application for the protection order is the complainant in relation to the recorded statement; and

(ii) the respondent to the application for the protection order is the person against whom the family violence offence, the subject of the recorded statement, is alleged.

6 New division 4.3.4

insert

Division 4.3.4 Recorded statement of police interview admissible as evidence—application for protection order

81H Recorded statement—may be admitted as evidence in application for family violence protection order

(1) This section applies if a recorded statement is made in relation to an alleged family violence offence.

(2) The recorded statement may be admitted by the Magistrates Court in a proceeding for an application for a protection order under the Family Violence Act 2016

if—

(a) the affected person in relation to the application for the protection order is the complainant in relation to the recorded statement; and

(b) the respondent to the application for the protection order is the person against whom the family violence offence is alleged.

Part 3 Family Violence Act 2016

7 Section 2

substitute

2 Commencement

(1) The following provisions (the national recognition provisions) commence on a day fixed by the Minister by written notice:

• part 9 (National recognition of FVOs)

• section 200 (Existing registered orders under repealed Act)

• dictionary, definitions of

corresponding law

family violence concern

family violence order, paragraph (b)

final FVO

foreign order

FVO

general violence order

interim FVO

interstate FVO

interstate law enforcement agency

issuing authority

issuing jurisdiction

jurisdiction

local FVO

local law enforcement agency

make

New Zealand FVO

non-local FVO

participating jurisdiction

properly notified

recognised amendment

recognised FVO

registered foreign order.

Note A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act

, s 77 (1)).

(2) The remaining provisions commence on 1 May 2017.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act

, s 75 (1)).

(3) If the national recognition provisions have not commenced within 12 months beginning on this Act’s notification day, they automatically commence on the first day after that period.

(4) The Legislation Act

, section 79 (Automatic commencement of postponed law) does not apply to the national recognition provisions.

8 Principle about procedures

Section 12

omit

under

substitute

for

9 New section 13A

in division 2.3, insert

13A Rules of evidence

To remove any doubt, the Magistrates Court need not comply with the rules of evidence applying in the ACT in a proceeding under this Act.

Note The Magistrates Court may inform itself in any way it considers appropriate in a proceeding for a family violence order (see s 65).

10 Matters to be considered—family violence orders

Section 14 (1) (i)

omit

11 New section 14 (2A)

insert

(2A) A failure of the court to comply with subsection (1) in relation to a family violence order does not affect the validity of the order.

12 New sections 16A and 16B

insert

16A Child may apply for protection order in same application as parent

(1) This provision applies if a child and the child’s parent are each an affected person in relation to the same or similar family violence by a respondent.

(2) An application for a protection order by the child may be included in an application for a protection order by the child’s parent.

Note The court may hear the application of the child and the child’s parent separately (see s 60C).

16B Applications by police officers

(1) This section applies if a police officer makes an application for a protection order for an affected person.

(2) The police officer must tell the Magistrates Court whether the affected person consents to the application.

13 Application forms that require affected person’s address

Section 17 (2), new note

insert

Note If a party to an application for a protection order is not represented by a lawyer, any address for service given to the court must not be given to the other party without the self-represented party’s consent (see s 70D).

14 Interim orders—only on application for final order

Section 20 (2)

substitute

(2) The Magistrates Court may make an interim order at any time before the application for the final order is decided.

15 General interim orders—length

Section 24 (2) and note

omit

16 General interim orders—taken to be special interim orders if related charges laid

Section 26 (2), new note

insert

Note The application for the final order must not be decided until all related charges are finalised (see s 31 (1)).

17 Section 26 (3) and note

substitute

(3) Unless section 31 (2) (Special interim orders—application not to be decided until related charges finalised) applies, the return date for a hearing to decide the application for the final order must be changed after all related charges are finalised to a day as soon as practicable after the day all related charges are finalised.

Note Under s 31 (2), an application for a final order may be finalised by the court before all related charges are finalised by consent or if a party is not present at a time when the application for the final order is returned before the Magistrates Court.

18 Special interim orders—application not to be decided until related charges finalised

Section 31 (2) (a)

substitute

(a) under section 53 (Applicant not present at return of application); or

(aa) under section 54 (Respondent not present at return of application); or

19 Special interim orders—final application decided

Section 32 (1), note

substitute

Note The court must not decide the application for the final order, unless by consent or because a party is not present at a time when the application is returned before the court, until all related charges are finalised (see s 31).

20 Section 32 (5)

omit

for the application

substitute

for the hearing of the application for the final order

21 New section 33A

in division 3.4, insert

33A Consent to interim order becoming final order

(1) This section applies if a court makes an interim order in the absence of a respondent.

(2) If the respondent wishes to consent to the interim order becoming a final order, the respondent may—

(a) fill out the endorsement copy of the interim order in accordance with the instructions on the copy; and

(b) indicate on the endorsement copy that the respondent consents to the interim order becoming a final order; and

(3) If the respondent acts under subsection (2), the interim order becomes a final order on the day the Magistrates Court receives the endorsement copy.

(4) In this section:

endorsement copy, of an interim order, means the copy of the interim order marked as the endorsement copy under section 70C (1).

22 Final orders—length

Section 35 (1), note

after

family violence

insert

by the respondent

23 Divisions 4.1 and 4.2

substitute

Division 4.1 What Magistrates Court must do after receiving application for protection order

45 Meaning of timing notice

In this Act:

timing notice, for a preliminary conference, means a written notice stating—

(a) the return date, time and place of the conference; and

(b) that if a party to the application does not appear at the conference, the court may decide the application in the party’s absence.

46 Interim order not sought

If the Magistrates Court receives an application for a protection order and an interim order is not sought, the registrar must do the following:

(a) set a return date for a preliminary conference which is as soon as practicable after the day the application is received;

(b) as soon as practicable serve on the respondent—

(i) a copy of the application; and

(ii) a timing notice for the conference;

Note The application for the protection order and timing notice must be served personally on the respondent (see s 70A).

47 Interim order sought

(1) If the Magistrates Court receives an application for a protection order and an interim order is sought, the court must do the following:

(a) set a return date for a hearing for the interim order which is not later than 2 days after the day the application is received;

(b) after the hearing for the interim order—

(i) set a return date for a preliminary conference which is as soon as practicable after the hearing; and

(ii) as soon as practicable serve on the respondent—

(A) a copy of the application; and

(B) a copy of the interim order; and

(iii) as soon as practicable give the applicant a timing notice.

Note The application for the protection order and timing notice must be served personally on the respondent (see s 70A).

(2) Subsection (1) (b) continues to apply even if the order is taken to be a special interim order under section 26 (General interim orders—taken to be special interim orders if related charges laid) before a preliminary conference is held.

48 Service of application etc on others

(1) This section applies to a document required to be served under section 46 or section 47.

(2) The registrar—

(a) must also give a copy of the document to the following people:

(i) if the applicant or respondent is a child—the child’s parent or guardian;

(ii) if the applicant or respondent has a disability guardian—the guardian; and

(b) may also give a copy of the document to anyone else the registrar considers appropriate.

Note Section 70F contains provisions about giving a document to a child or the child’s parent or guardian.

(3) The failure of the registrar to comply with subsection (2) (a) does not affect the validity of any protection order or other order under this Act.

Division 4.2 Preliminary conferences

49 Preliminary conferences—generally

(1) The objects of a preliminary conference in relation to an application for a protection order are to—

(a) find out whether the proceeding for the order may be settled by consent before it is heard by the Magistrates Court; and

(b) ensure the application is ready to be heard as soon as practicable.

Note 1 Before making a consent order, the court must explain certain things about the order (see s 66 and s 67).

Note 2 Words spoken or anything done at the preliminary conference that is related to a question to be decided by the court in the proceeding for the protection order is generally inadmissible as evidence in the proceeding (see s 62).

(2) The failure of the registrar to hold a preliminary conference in relation to an application for a protection order does not affect the validity of the protection order.

50 Adjournment of preliminary conference for non-service

The registrar may adjourn a preliminary conference if—

(a) the registrar has set a return date for the preliminary conference; and

(b) the respondent has not been served in accordance with section 46 or section 47; and

(c) the registrar is satisfied the respondent may be served in accordance with section 46 or section 47 if further time for service were allowed.

Note 1 The court may direct that service be effected in another way if personal service is not reasonably practicable (see s 70A (2)).

Note 2 The registrar may also extend a general interim order (see s 28).

51 If no consent order at preliminary conference

If a preliminary conference in relation to an application for a protection order is held and a consent order is not made, the registrar must—

(a) set a return date for a further preliminary conference which is as soon as practicable after the day of the first conference; or

(b) set a return date for a hearing to decide the application for the final order; or

Division 4.2A Non-attendance by party

52 Meaning of returned before the court—div 4.2A

For this division, a time when an application for a protection order is returned before the Magistrates Court means—

(a) a return date set for a preliminary conference; or

(b) a return date set for a hearing of the application for a final order.

53 Applicant not present at return of application

If the applicant is not present, personally or by a representative, at a time when an application for a protection order is returned before the Magistrates Court, the court must—

(a) dismiss the application; or

(b) adjourn the proceeding.

Note An interim order ends if the application for a final order on which the interim order was made is discontinued or dismissed (see s 25).

54 Respondent not present at return of application

(1) This section applies to an application for a protection order if the respondent—

(a) has been served with a copy of the application and timing notice under section 46 or section 47; and

(b) is not present, personally or by a representative, at a time when the application is returned before the Magistrates Court.

(2) The Magistrates Court must—

(a) decide the application in the respondent’s absence; or

(b) if the court considers it appropriate—

(i) issue a warrant for the respondent to be arrested and brought before the court; and

(ii) adjourn the proceeding until the respondent is brought before the court.

(3) This section does not prevent the Magistrates Court from making an interim order in the proceeding.

54A Neither party present at return of application

(1) If neither party to an application for a protection order is present, personally or by a representative, at a time when the application is returned before the court, the Magistrates Court may order that the proceeding be dismissed.

(2) If the Magistrates Court orders that the proceeding be dismissed, the court must not make an order about costs.

24 Sections 55, 56 and 57

omit

25 Public hearing not required

Section 59 (a), (b) and (c)

substitute

(a) it is a hearing for an interim order; or

(b) a party is not present at a time when the application is returned before the court.

Note Division 4.2A provides for what happens if a party is not present when an application for a final order is returned before the court.

26 New section 59 (2)

insert

(2) In this section:

returned, in relation to an application for a protection order—see section 52.

27 New sections 60A to 60D

insert

60A Notice of grounds of defence

(1) A respondent in a proceeding for an application for a protection order may file a notice of grounds of defence at any time before the end of the proceeding.

Note If a form is approved under the Court Procedures Act 2004

, s 8 for this provision, the form must be used.

(2) The registrar must serve the notice of grounds of defence on—

(a) the applicant; and

(b) anyone else the registrar is satisfied has a relevant interest in the proceeding.

Example

a parent or guardian of a child who is an applicant if the parent or guardian does not live with the child

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(3) The respondent does not waive any objection the respondent may have on the grounds of lack of jurisdiction in the court to decide the proceeding only because the respondent files a notice of grounds of defence.

60B Applicant may rely on additional information in hearing

An applicant for a protection order may in a hearing of an application for a protection order—

(a) rely on information other than information stated in the application; and

(b) present additional information to support the application.

60C If child and child’s parent are affected people

If a child and the child’s parent are an affected person in relation to the same or similar family violence by a respondent in a proceeding—

(a) if an application for a protection order by the child is included in an application for a protection order by the child’s parent under section 16A—the court may hear the application of the child and the child’s parent separately; or

(b) if the child is not a party to the proceeding—the court may join the child in the proceeding.

60D Children as witnesses

(1) A child, other than a child who is party to a proceeding, may be called as a witness in the proceeding only with the court’s leave.

(2) In deciding whether to give leave, the court must consider—

(a) the need to protect the child from unnecessary exposure to the court system; and

(b) the harm that could be done to the child and the child’s relationship with a family member if the child gives evidence.

(3) If the court gives leave, the court may restrict cross-examination of the child if satisfied that it is in the best interests of the child to do so.

28 Discontinuance

Section 61 (1), note

substitute

Note 1 The court may make an order for costs against an applicant if satisfied the application was vexatious, frivolous or in bad faith. However, an application is not vexatious, frivolous or in bad faith only because it is made then discontinued (see s 73).

Note 2 If a form is approved under the Court Procedures Act 2004

, s 8 for this provision, the form must be used.

29 New section 62A

insert

62A Giving evidence by affidavit for interim order

(1) This section applies if a police officer applies for a protection order on behalf of an affected person.

(2) In a proceeding for an interim order, evidence may be given by an affidavit—

(a) made by the affected person or a police officer; and

(b) witnessed by a police officer of, or above, the rank of sergeant.

30 Service of protection orders

Section 70

omit

31 New division 4.4A

insert

Division 4.4A Service of documents

70A Personal service of application on respondent

(1) An application for a protection order and timing notice must be served personally on the respondent.

(2) However, if personal service is not reasonably practicable, the court may order that the application be served in a way, stated in the order, that the court considers is likely to bring the application and timing notice to the attention of the respondent.

70B Dismissal of application for non-service

The Magistrates Court may dismiss an application for a protection order if satisfied that—

(a) the application cannot be served on the respondent in accordance with section 70A; and

(b) no alternative way of service would be effective to serve the application on the respondent; and

70C Service of protection orders

(1) If a court makes a protection order, the registrar must—

(a) if the order is an interim order—serve 2 copies of the order (1 marked as the endorsement copy) on the respondent as soon as practicable; and

(b) if the order is not an interim order—serve a copy of the order on the respondent; and

(i) each other party to the proceeding; and

(ii) the chief police officer; and

(iii) the registrar of firearms; and

(iv) if a party to the proceeding is a child—the child’s parent or guardian; and

(v) if a party to the proceeding has a disability guardian—the guardian; and

(vi) anyone else the court is satisfied has a relevant interest in the proceeding who does not already have a copy of the order.

Note 1 Section 108 provides for service of an after-hours order.

Note 2 Section 70F contains provisions about giving a document to a child or the child’s parent or guardian.

(2) If the registrar serves a special interim order on a person, the registrar must also give the person a notice telling the person that—

(a) the respondent may apply to the court for review of the order under section 87 (Special interim orders—application for review); and

(b) if a preliminary conference in relation to the application for the protection order is held and a consent order is not made—the court will set a return date for a hearing to decide the application for the final order after all related charges are finalised.

(3) Service under subsection (1) (a) must be personal service unless—

(a) the respondent is present when the protection order is made; or

(b) a court makes an order under section 70A (2).

(4) The failure of the registrar to comply with subsection (1) (c) (iv) or (v) does not affect the validity of the protection order.

70D Self-represented parties

(1) This section applies if a party to an application for a protection order is not represented by a lawyer.

(2) Unless the court requires a document to be served by a police officer, the registrar must serve any document required to be served by the self-represented party.

(3) Any address for service given to the court must not be given to the other party without the self-represented party’s consent.

70E Service of documents by police

A court may direct that a document required to be served on someone be served by a police officer.

70F Giving documents to child or child’s parent or guardian

(1) If a document is required to be given to a child, it must not be given at or near the child’s school unless there is no other place where the document may be reasonably given to the child.

(2) If a document is required to be given to a child’s parent or guardian—

(a) the document need not be given if the parent or guardian is also a party to the application or proceeding; and

(b) the court may order that the document is not required to be given if satisfied that—

(i) giving the document is not reasonably practicable; or

(ii) there are circumstances that justify the document not being given.

Examples—subpar (ii)

1 the child is estranged from the child’s parent

2 there would be an unacceptable risk to the child’s safety if the parent or guardian was given the document

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(3) In this section:

guardian includes a disability guardian.

32 New section 71A

insert

71A Request for further particulars

A party may only seek further particulars of an applicant for a protection order with the court’s leave.

33 Directions about procedure

Section 72

omit

34 Costs

Section 73 (2), note

omit

s 57

substitute

s 54A

35 Litigation guardian—appointment

Section 78 (1) (a)

omit

individual

substitute

adult

36 New section 82A

insert

82A Preliminary conferences

If the Magistrates Court receives an application under section 82, the registrar must do the following:

(a) set a return date for a preliminary conference which is as soon as practicable after the day the application is received;

(b) as soon as practicable personally serve on the other party—

(i) a copy of the application; and

(ii) a timing notice for the conference;

37 Amendment of protection orders

Section 83 (1) (a)

omit

38 Section 83 (1), example and note

omit

39 Section 83 (5) and note

substitute

(5) If the parties consent to the application to amend the protection order, the Magistrates Court must amend the order regardless of whether or not—

(a) the grounds mentioned in subsection (1) (b), (c) and (d) have been made out; or

(b) the court has considered those grounds.

40 General interim orders made by consent—extension

Section 85 (1)

omit

, of up to 8 weeks

41 Section 85 (2)

omit

42 Final orders—extension

Section 86 (3), (4) and (5) and note

omit

43 Special interim orders—application for review

Section 87 (d)

omit

44 Special interim orders—review

Section 88 (3)

after

special interim order

insert

and the protected person is not present in court when the order is revoked

45 Section 89 heading

substitute

89 Final orders—application for review

46 Section 89 (1)

omit

other than a consent order

47 Section 89 (1), note

after

Section 91

insert

also

48 New section 89 (3A)

insert

(3A) The Magistrates Court may grant leave under subsection (2) (c) only if satisfied there has been a change in the circumstances of a party to the order or it is in the interests of justice to do so.

49 Section 90 heading

substitute

90 Final orders—review

50 Section 90 (3)

after

original order

insert

and the protected person is not present in court when the order is revoked

51 Consent orders—review

Section 91 (1)

after

may

insert

also

52 Section 91 (1)

omit

only

53 New section 91A

insert

91A Preliminary conferences

If the Magistrates Court receives an application under section 87, section 89 or section 91, the registrar must do the following:

(a) set a return date for a preliminary conference which is as soon as practicable after the day the application is received;

(b) as soon as practicable personally serve on the other party—

(i) a copy of the application; and

(ii) a timing notice for the conference;

54 Giving notice of appeal

Section 94

omit

55 Court-initiated interim orders

Section 112 (1), note

omit

s 70

substitute

s 70C

56 Interim court-initiated protection order taken to be special interim order

Section 113 (a)

omit

in accordance with section 45

substitute

on the respondent

57 Section 113 (e) and (f)

substitute

(e) section 47 (1) (b) (Interim order sought) applies to the order; and

(f) section 48 (Service of application etc on others) applies to the order; and

(g) division 4.2 (Preliminary conferences) applies to the order; and

(h) division 4.2A (Non-attendance by party) applies to the order.

58 Definitions—pt 9

Section 115, definition of registered foreign order

substitute

registered foreign order means—

(a) a foreign order of another jurisdiction prescribed by regulation; or

(b) a foreign order registered under section 134B.

59 Meaning of properly notified—pt 9

Section 117

omit

division 4.1 (Service of applications)

substitute

division 4.4A (Service of documents)

60 Making new orders

Section 123 (2)

omit

make

substitute

apply for

61 New division 9.3A

insert

Division 9.3A Registration of foreign orders

134A Applications for registration of foreign orders

(1) A person may apply to the registrar for registration of a foreign order.

Note If a form is approved under the Court Procedures Act 2004

, s 8 for an application, the form must be used.

(2) The application must be accompanied by the foreign order or a certified copy of the order.

134B Registration of foreign orders

(1) On receiving an application under section 134A, the registrar must register the foreign order.

(2) If the registrar registers a foreign order, the registrar must—

(a) give the chief police officer a copy of—

(i) the application for registration; and

(ii) the foreign order; and

(b) tell the court that made the foreign order, in writing, that the order has been registered.

62 New sections 198 and 199

in part 20, insert

198 Meaning of repealed Act—pt 20

In this part:

repealed Act means the Domestic Violence and Protection Orders Act 2008

199 Applications and orders under repealed Act

(1) This section applies if—

(a) an application for a domestic violence order is made under the repealed Act

; or

(b) a domestic violence order is made under the repealed Act

(2) The application or domestic violence order is taken to have been made under this Act.

(3) A proceeding for or in relation to an application for a domestic violence order under the repealed Act

is taken to be a proceeding under this Act.

Note Any procedural requirement under this Act, the Court Procedures Act 2004

or any other territory law will apply to a proceeding under the repealed Act

(4) To avoid doubt, if an application or an order is properly made under the repealed Act

, or taken to have been properly made under the repealed Act

, section 27 or section 28, it is taken to have been properly made under this Act.

63 New section 199 (2A)

insert

(2A) However, part 9 (National Recognition of FVOs) does not apply to a domestic violence order made under the repealed Act

64 Existing registered orders under repealed Act

Section 200 (4)

omit

65 New section 200A

insert

200A Preservation of repealed Act, pt 12

The repealed Act

, part 12 (Reciprocal arrangements) as in force immediately before its repeal continues to apply in relation to an order that corresponds to a domestic violence order until the commencement of part 9 (National recognition of FVOs).

66 Dictionary, note 2

insert

• adult

67 Dictionary, note 2

omit

• individual

68 Dictionary, new definition of returned

insert

returned, in relation to an application for a protection order, for division 4.2A (Non-attendance by party)—see section 52.

69 Dictionary, definition of timing notice

substitute

timing notice, for a preliminary conference—see section 45.

Part 4 Personal Violence Act 2016

70 Principle about procedures

Section 9

omit

under

substitute

for

71 New section 10A

in division 2.2, insert

10A Rules of evidence

To remove any doubt, the Magistrates Court need not comply with the rules of evidence applying in the ACT in a proceeding under this Act.

Note The Magistrates Court may inform itself in any way it considers appropriate in a proceeding for a protection order (see s 59).

72 Matters to be considered—protection orders

Section 11 (1) (f)

omit

73 New section 11 (2A)

insert

(2A) A failure of the court to comply with subsection (1) in relation to a protection order does not affect the validity of the order.

74 New sections 13A and 13B

insert

13A Child may apply for protection order in same application as parent

(1) This provision applies if a child and the child’s parent are each an affected person in relation to the same or similar personal violence by a respondent.

(2) An application for a protection order by the child may be included in an application for a protection order by the child’s parent.

Note The court may hear the application of the child and the child’s parent separately (see s 55C).

13B Applications by police officers

(1) This section applies if a police officer makes an application for a personal protection order for an affected person.

(2) The police officer must tell the Magistrates Court whether the affected person consents to the application.

75 Application forms that require affected person’s address

Section 14 (2), new note

insert

76 Interim orders—only on application for final order

Section 17 (2)

substitute

(2) The Magistrates Court may make an interim order at any time before the application for the final order is decided.

77 Interim orders—length

Section 20 (2) and note

omit

78 New section 24A

in division 3.4, insert

24A Consent to interim order becoming final order

(1) This section applies if a court makes an interim order in the absence of a respondent.

(2) If the respondent wishes to consent to the interim order becoming a final order, the respondent may—

(a) fill out the endorsement copy of the interim order in accordance with the instructions on the copy; and

(b) indicate on the endorsement copy that the respondent consents to the interim order becoming a final order; and

(3) If the respondent acts under subsection (2), the interim order becomes a final order on the day the Magistrates Court receives the endorsement copy.

(4) In this section:

endorsement copy, of an interim order, means the copy of the interim order marked as the endorsement copy under section 64C (1).

79 Final orders—length

Section 27 (1), note

after

personal violence

insert

by the respondent

80 Divisions 4.1 and 4.2

substitute

Division 4.1 What Magistrates Court must do after receiving application for protection order

39 Meaning of timing notice

In this Act:

timing notice, for a preliminary conference, means a written notice stating—

(a) the return date, time and place of the conference; and

(b) that if a party to the application does not appear at the conference, the court may decide the application in the party’s absence.

40 Interim order not sought

If the Magistrates Court receives an application for a protection order and an interim order is not sought, the registrar must do the following:

(a) set a return date for a preliminary conference which is as soon as practicable after the day the application is received;

(b) as soon as practicable serve on the respondent—

(i) a copy of the application; and

(ii) a timing notice for the conference;

Note The application for the protection order and timing notice must be served personally on the respondent (see s 64A).

41 Interim order sought

If the Magistrates Court receives an application for a protection order and an interim order is sought, the court must do the following:

(a) set a return date for a hearing for the interim order which is not later than 2 days after the day the application is received;

(b) after the hearing for the interim order—

(i) set a return date for a preliminary conference which is as soon as practicable after the hearing; and

(ii) as soon as practicable serve on the respondent—

(A) a copy of the application; and

(B) a copy of the interim order; and

(iii) as soon as practicable give the applicant a timing notice.

Note The application for the protection order and timing notice must be served personally on the respondent (see s 64A).

42 Service of application etc on others

(1) This section applies to a document required to be served under section 40 or section 41.

(2) The registrar—

(a) must also give a copy of the document to the following people:

(i) if the applicant or respondent is a child—the child’s parent or guardian;

(ii) if the applicant or respondent has a disability guardian—the guardian; and

(b) may also give a copy of the document to anyone else the registrar considers appropriate.

Note Section 64F contains provisions about giving a document to a child or the child’s parent or guardian.

(3) The failure of the registrar to comply with subsection (2) (a) does not affect the validity of any protection order or other order under this Act.

Division 4.2 Preliminary conferences

43 Preliminary conferences—generally

(1) The objects of a preliminary conference in relation to an application for a protection order are to—

(a) find out whether the proceeding for the order may be settled by consent before it is heard by the Magistrates Court; and

(b) ensure the application is ready to be heard as soon as practicable.

Note 1 Before making a consent order, the court must explain certain things about the order (see s 60 and s 61).

(2) The failure of the registrar to hold a preliminary conference in relation to an application for a protection order does not affect the validity of the protection order.

44 Adjournment of preliminary conference for non-service

The registrar may adjourn a preliminary conference if—

(a) the registrar has set a return date for the preliminary conference; and

(b) the respondent has not been served in accordance with section 40 or section 41; and

(c) the registrar is satisfied the respondent may be served in accordance with section 40 or section 41 if further time for service were allowed.

Note 1 The court may direct that service be effected in another way if personal service is not reasonably practicable (see s 64A (2)).

Note 2 The registrar may also extend an interim order (see s 23).

45 If no consent order at preliminary conference

If a preliminary conference in relation to an application for a protection order is held and a consent order is not made, the registrar must—

(a) set a return date for a further preliminary conference which is as soon as practicable after the day of the first conference; or

(b) set a return date for a hearing to decide the application for the final order.

46 Referrals to mediation

(1) This section applies if, at any time during the preliminary conference for an application for a protection order, the registrar is satisfied that the application is likely to be more effectively resolved by mediation than by a hearing.

(2) The registrar must—

(a) recommend to the parties to the application that they seek mediation; and

(b) give the parties information about mediation; and

Note The Court Procedures Act 2004

, pt 5A (Mediation) applies to a mediation in relation to a proceeding in a court.

Division 4.2A Non-attendance by party

47 Meaning of returned before the court—div 4.2A

For this division, a time when an application for a protection order is returned before the Magistrates Court means—

(a) a return date set for a preliminary conference; or

(b) a return date set for a hearing of the application for a final order.

48 Applicant not present at return of application

If the applicant is not present, personally or by a representative, at a time when an application for a protection order is returned before the Magistrates Court, the court must—

(a) dismiss the application; or

(b) adjourn the proceeding.

Note An interim order ends if the application for a final order on which the interim order was made is discontinued or dismissed (see s 21).

49 Respondent not present at return of application

(1) This section applies to an application for a protection order if the respondent—

(a) has been served with a copy of the application and timing notice under section 40 or section 41; and

(b) is not present, personally or by a representative, at a time when the application is returned before the Magistrates Court.

(2) The Magistrates Court must—

(a) decide the application in the respondent’s absence; or

(b) if the court considers it appropriate—

(i) issue a warrant for the respondent to be arrested and brought before the court; and

(ii) adjourn the proceeding until the respondent is brought before the court.

(3) This section does not prevent the Magistrates Court from making an interim order in the proceeding.

49A Neither party present at return of application

(2) If the Magistrates Court orders that the proceeding be dismissed, the court must not make an order about costs.

81 Sections 50, 51 and 52

omit

82 Public hearing not required

Section 54 (a), (b) and (c)

substitute

(a) it is a hearing for an interim order; or

(b) a party is not present at a time when the application is returned before the court.

Note Division 4.2A provides for what happens if a party is not present when an application for a final order is returned before the court.

83 New section 54 (2)

insert

(2) In this section:

returned, in relation to an application for a protection order—see section 47.

84 New sections 55A to 55D

insert

55A Notice of grounds of defence

(1) A respondent in a proceeding for an application for a protection order may file a notice of grounds of defence at any time before the end of the proceeding.

Note If a form is approved under the Court Procedures Act 2004

, s 8 for this provision, the form must be used.

(2) The registrar must serve the notice of grounds of defence on—

(a) the applicant; and

(b) anyone else the registrar is satisfied has a relevant interest in the proceeding.

Example

a parent or guardian of a child who is an applicant if the parent or guardian does not live with the child

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

55B Applicant may rely on additional information in hearing

An applicant for a protection order may in a hearing of an application for a protection order—

(a) rely on information other than information stated in the application; and

(b) present additional information to support the application.

55C If child and child’s parent are affected people

If a child and the child’s parent are an affected person in relation to the same or similar personal violence by a respondent in a proceeding—

(a) if an application for a protection order by the child is included in an application for a protection order by the child’s parent under section 13A—the court may hear the application of the child and the child’s parent separately; or

(b) if the child is not a party to the proceeding—the court may join the child in the proceeding.

55D Children as witnesses

(1) A child, other than a child who is party to a proceeding, may be called as a witness in the proceeding only with the court’s leave.

(2) In deciding whether to give leave, the court must consider—

(a) the need to protect the child from unnecessary exposure to the court system; and

(b) the harm that could be done to the child if the child gives evidence.

(3) If the court gives leave, the court may restrict cross-examination of the child if satisfied that it is in the best interests of the child to do so.

85 Discontinuance

Section 56 (1), note

substitute

Note 2 If a form is approved under the Court Procedures Act 2004

, s 8 for this provision, the form must be used.

86 New section 57A

insert

57A Giving evidence by affidavit for interim order

(1) This section applies if a police officer applies for a personal protection order on behalf of an affected person.

(2) In a proceeding for an interim order, evidence may be given by an affidavit—

(a) made by the affected person or a police officer; and

(b) witnessed by a police officer of, or above, the rank of sergeant.

87 Service of protection orders

Section 64

omit

88 New division 4.4A

insert

Division 4.4A Service of documents

64A Personal service of application on respondent

(1) An application for a protection order and timing notice must be served personally on the respondent.

64B Dismissal of application for non-service

The Magistrates Court may dismiss an application for a protection order if satisfied that—

(a) the application cannot be served on the respondent in accordance with section 64A; and

(b) no alternative way of service would be effective to serve the application on the respondent; and

64C Service of protection orders

(1) If the Magistrates Court makes a protection order, the registrar must—

(a) if the order is an interim order—serve 2 copies of the order (1 marked as the endorsement copy) on the respondent as soon as practicable; and

(b) if the order is not an interim order—serve a copy of the order on the respondent; and

(i) each other party to the proceeding; and

(ii) the chief police officer; and

(iii) the registrar of firearms; and

(iv) if a party to the proceeding is a child—the child’s parent or guardian; and

(v) if a party to the proceeding has a disability guardian—the guardian; and

(vi) anyone else the court is satisfied has a relevant interest in the proceeding who does not already have a copy of the order.

Note Section 64F contains provisions about giving a document to a child or the child’s parent or guardian.

(2) Service under subsection (1) (a) must be personal service unless—

(a) the respondent is present when the protection order is made; or

(b) a court makes an order under section 64A (2).

(3) The failure of the registrar to comply with subsection (1) (c) (iv) or (v) does not affect the validity of the protection order.

64D Self-represented parties

(1) This section applies if a party to an application for a protection order is not represented by a lawyer.

(2) Unless the Magistrates Court requires a document to be served by a police officer, the registrar must serve any document required to be served by the self-represented party.

(3) Any address for service given to the Magistrates Court must not be given to the other party without the self-represented party’s consent.

64E Service of documents by police

The Magistrates Court may direct that a document required to be served on someone be served by a police officer.

64F Giving documents to child or child’s parent or guardian

(1) If a document is required to be given to a child, it must not be given at or near the child’s school unless there is no other place where the document may be reasonably given to the child.

(2) If a document is required to be given to a child’s parent or guardian—

(a) the document need not be given if the parent or guardian is also a party to the application or proceeding; and

(b) the court may order that the document is not required to be given if satisfied that—

(i) giving the document is not reasonably practicable; or

(ii) there are circumstances that justify the document not being given.

Examples—subpar (ii)

1 the child is estranged from the child’s parent

2 there would be an unacceptable risk to the child’s safety if the parent or guardian was given the document

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(3) In this section:

guardian includes a disability guardian.

89 New section 65A

insert

65A Request for further particulars

A party may only seek further particulars of an applicant for a protection order with the Magistrate Court’s leave.

90 Directions about procedure

Section 66

omit

91 Costs

Section 67 (2), note

omit

s 52

substitute

s 49A

92 Litigation guardian—appointment

Section 72 (1) (a)

omit

individual

substitute

adult

93 New section 76A

insert

76A Preliminary conferences

If the Magistrates Court receives an application under section 76, the registrar must do the following:

(a) set a return date for a preliminary conference which is as soon as practicable after the day the application is received;

(b) as soon as practicable personally serve on the other party—

(i) a copy of the application; and

(ii) a timing notice for the conference;

94 Amendment of protection orders

Section 77 (1) (a)

omit

95 Section 77 (1), example and note

omit

96 Section 77 (5) and note

substitute

(5) If the parties consent to the application to amend the protection order, the Magistrates Court must amend the order regardless of whether or not—

(a) the grounds mentioned in subsection (1) (b), (c) and (d) have been made out; or

(b) the court has considered those grounds.

97 Interim orders made by consent—extension

Section 79 (1)

omit

, of up to 8 weeks

98 Section 79 (2)

omit

99 Final orders—extension

Section 80 (3), (4) and (5) and note

omit

100 Section 81 heading

substitute

81 Final orders—application for review

101 Section 81 (1)

omit

other than a consent order

102 Section 81 (1), note

after

Section 83

insert

also

103 New section 81 (3A)

insert

104 Section 82 heading

substitute

82 Final orders—review

105 Section 82 (3)

after

original order

insert

and the protected person is not present in court when the order is revoked

106 Consent orders—review

Section 83 (1)

after

may

insert

also

107 Section 83 (1)

omit

only

108 New section 83A

insert

83A Preliminary conferences

If the Magistrates Court receives an application under section 81 the registrar must do the following:

(a) set a return date for a preliminary conference which is as soon as practicable after the day the application is received;

(b) as soon as practicable personally serve on the other party—

(i) a copy of the application; and

(ii) a timing notice for the conference;

109 Giving notice of appeal

Section 86

omit

110 New sections 198 and 199

in part 20, insert

198 Meaning of repealed Act—pt 20

In this part:

repealed Act means the Domestic Violence and Protection Orders Act 2008

199 Applications and orders under repealed Act

(1) This section applies if—

(a) an application for a personal protection order is made under the repealed Act

; or

(b) a personal protection order is made under the repealed Act

(2) The application or personal protection order is taken to have been made under this Act.

(3) A proceeding for or in relation to an application for a personal protection order under the repealed Act

is taken to be a proceeding under this Act.

Note Any procedural requirement under this Act, the Court Procedures Act 2004

or any other territory law will apply to a proceeding under the repealed Act

(4) To avoid doubt, if an application or an order is properly made under the repealed Act

, or taken to have been properly made under the repealed Act

, section 27 or section 28, it is taken to have been properly made under this Act.

111 Existing registered orders under repealed Act

Section 200 (1) (a)

omit

Domestic Violence and Protection Orders Act 2008

substitute

repealed Act

112 Dictionary, note 2

insert

• adult

113 Dictionary, note 2

omit

• individual

114 Dictionary, new definition of returned

insert

returned, in relation to an application for a protection order, for division 4.2A (Non-attendance by party)—see section 47.

115 Dictionary, definition of timing notice

substitute

timing notice, for a preliminary conference—see section 39.

Endnotes

1 Presentation speech

Presentation speech made in the Legislative Assembly on 16 February 2017.

2 Notification

Notified under the Legislation Act

on 2017.

3 Republications of amended laws

For the latest republication of amended laws, see www.legislation.act.gov.au

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