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CRIMINAL PROCEDURE ACT 1921 - SECT 99AAC

99AAC—Child protection restraining orders

        (1)         An application for a restraining order under this section may be made to the Magistrates Court by—

            (a)         a police officer; or

            (b)         a child, or the guardian of a child, for the protection of whom a restraining order under this section is sought.

        (2)         On the hearing of an application under this section, the Magistrates Court may make a restraining order against the defendant if—

            (a)         the defendant is an adult who is, or has been, residing with a child under the age of 17 years of whom the defendant is not a guardian; and

            (b)         the defendant and the child are, or have been, residing at premises other than premises in which a guardian of the child resides; and

            (c)         —

                  (i)         the defendant or another person who resides at, or frequents, premises at which the defendant and the child reside or have resided—

                        (A)         has, within the preceding 10 years, been convicted of a prescribed offence; or

                        (B)         is, or has at any time been, subject to a restraining order under this section; or

                  (ii)         the Magistrates Court is satisfied that, as a consequence of the child's contact or residence with the defendant, the child is at risk of—

                        (A)         sexual abuse or physical, psychological or emotional abuse or neglect; or

                        (B)         engaging in, or being exposed to, conduct that is an offence under Part 5 of the Controlled Substances Act 1984 ; and

            (d)         the Magistrates Court is satisfied that the making of the order is appropriate in the circumstances.

        (3)         In considering whether or not to make a restraining order under this section and in considering the terms of the restraining order, the Magistrates Court's primary consideration must be the best interests of the child, and in determining the best interests of the child the Magistrates Court must have regard to the following matters:

            (a)         the degree of control or influence exerted by the defendant over the child;

            (b)         the prior criminal record (if any) of the defendant;

            (c)         any apparent pattern in the defendant's behaviour towards the child or other children and any apparent justification for that behaviour;

            (d)         the views of the child and any guardian of the child (to the extent that they are made known to the Magistrates Court);

            (e)         any other matter that the Magistrates Court considers relevant.

        (4)         The Magistrates Court may—

            (a)         require that a copy of the application under this section be served on the child, or a guardian of the child, personally; and

            (b)         issue any orders it thinks fit to ensure that the child, or a guardian of the child, is given an opportunity to be heard in relation to the application.

        (5)         A restraining order under this section—

            (a)         may impose such restraints on the defendant as are necessary or desirable to protect the child from any apprehended risk; and

            (b)         may include any consequential or ancillary orders that the Magistrates Court thinks fit; and

            (c)         will expire when the child reaches the age of 17 years or, if an earlier time is specified in the order, at that earlier time.

        (6)         If the Magistrates Court has made a restraining order under this section, the Magistrates Court may also, subject to any current proceedings before, or orders of, the Family Court of Australia or the Youth Court, make orders providing for the temporary placement of the child (pending, if necessary, proceedings before either of those courts)—

            (a)         subject to paragraphs (b) and (c), into the custody of a guardian of the child; or

            (b)         if the Magistrates Court is not satisfied that placement of the child with a guardian is in the best interests of the child, or if such a placement is not possible or appropriate—into the custody of such other person as the Magistrates Court directs; or

            (c)         if the Magistrates Court is not satisfied that placement of the child with a guardian or some other person is in the best interests of the child, or if such a placement is not possible or appropriate—into the custody of the Minister (for a period not exceeding 28 days) and the care of such person as the Chief Executive, or the Chief Executive's nominee, directs.

        (7)         If the applicant is not a police officer, and the application is not made by telephone by a person introduced by a police officer, the following provisions apply despite any other provisions of this Act:

            (a)         the Magistrates Court must not issue a summons for the appearance of the defendant and must dismiss the application unless it is supported by oral evidence;

            (b)         in addition to the discretion whether to make an order under section 99C(2), the Magistrates Court has, subject to this subsection, a discretion to refuse to issue a summons for the appearance of the defendant and to dismiss the application;

            (c)         without limiting the circumstances in which the Magistrates Court may exercise the discretion, the Magistrates Court may exercise the discretion under paragraph (b) to dismiss the application if satisfied that the application is frivolous, vexatious, without substance or has no reasonable prospect of success;

            (d)         there is a presumption against exercising the discretion under paragraph (b) to dismiss the application if the application discloses allegations of—

                  (i)         sexual abuse; or

                  (ii)         conduct that is an offence under Part 5 of the Controlled Substances Act 1984 ;

            (e)         if the Magistrates Court exercises the discretion under paragraph (b) to dismiss the application, it must record the reasons for doing so in writing.

        (8)         In this section—

"Chief Executive" has the same meaning as in the Children and Young People (Safety) Act 2017 ;

"child sexual offence" means any of the following offences committed against or in relation to a child under 16 years of age (including a substantially similar offence against a corresponding previous enactment or the law of another place):

            (a)         rape;

            (b)         indecent assault;

            (c)         incest;

            (d)         an offence involving unlawful sexual intercourse;

            (daa)         an offence of persistent sexual abuse of a child under section 50 of the Criminal Law Consolidation Act 1935 ;

            (da)         an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935 ;

            (e)         an offence involving an act of gross indecency;

            (f)         an offence involving child prostitution;

            (g)         an offence involving indecency or sexual misbehaviour including an offence against Part 3 Division 11A of the Criminal Law Consolidation Act 1935 or against section 23 or 33 of the Summary Offences Act 1953 ;

            (h)         an attempt to commit, or assault with intent to commit, any of the offences referred to in the above paragraphs;

                  (i)         any other offence (such as homicide or abduction), if there are reasonable grounds to believe that any of the offences referred to in the above paragraphs was also committed by the same person against or in relation to the child in the course of, or as part of events surrounding, the commission of the offence;

"conviction"—a person is taken to have been "convicted" of an offence if—

            (a)         the person was convicted of the offence; or

            (b)         the person was charged with, and found guilty of, the offence but was discharged without conviction; or

            (c)         a court, with the consent of the person, took the offence, of which the person had not been found guilty, into account in passing sentence on the person for another offence; or

            (d)         a court has, under Part 8A Division 2 of the Criminal Law Consolidation Act 1935 recorded findings that—

                  (i)         the person was mentally incompetent to commit the offence; and

                  (ii)         the objective elements of the offence were established; or

            (e)         a court has, under Part 8A Division 3 of the Criminal Law Consolidation Act 1935 , recorded findings that—

                  (i)         the person was mentally unfit to stand trial on a charge of the offence; and

                  (ii)         the objective elements of the offence were established;

"guardian", of a child, means a parent of the child, a person who is the legal guardian of the child or has the legal custody of the child or any other person who stands in loco parentis to the child and has done so for a significant length of time;

"Minister" means the Minister to whom the administration of the Children and Young People (Safety) Act 2017 is committed;

"prescribed offence" means—

            (a)         a child sexual offence; or

            (b)         an offence under Part 5 of the Controlled Substances Act 1984 ;

"sexual abuse"—a child is sexually abused if—

            (a)         a child sexual offence is committed against or in relation to the child; or

            (b)         the child is exposed to the commission of a child sexual offence against or in relation to another child.



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