South Australian Numbered Acts South Australian Numbered ActsAfter section 99AAB insert:
99AAC—Child protection restraining orders
(1) A complaint may be
made under this section 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 a complaint,
the 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 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
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 Court's primary
consideration must be the best interests of the child, and in determining the
best interests of the child the 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 Court);
(e) any
other matter that the Court considers relevant.
(4) The Court
may—
(a)
require that a copy of the complaint 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 complaint.
(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 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 Court has
made a restraining order under this section, the 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 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 Court directs;
or
(c) if
the 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 complainant
is not a police officer, and the complaint 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
Court must not issue a summons for the appearance of the defendant and must
dismiss the complaint unless it is supported by oral evidence;
(b) in
addition to the discretion whether to make an order under section 99C(2),
the Court has, subject to this subsection, a discretion to refuse to issue a
summons for the appearance of the defendant and to dismiss the complaint;
(c)
without limiting the circumstances in which the Court may exercise the
discretion, the Court may exercise the discretion under paragraph (b) to
dismiss the complaint if satisfied that the complaint 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 complaint if the complaint 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 Court exercises the discretion under paragraph (b) to dismiss the
complaint, it must record the reasons for doing so in writing.
(8) In this
section—
"Chief Executive" means the person for the time being holding, or acting in,
the position of Chief Executive of the administrative unit of the Public
Service charged with the administration of the Children's Protection
Act 1993 ;
"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;
(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's Protection Act 1993 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.