CHILDREN AND YOUNG PEOPLE ACT 2008 - SECT 459 Childrens Court may make or amend protection orders
CHILDREN AND YOUNG PEOPLE ACT 2008 - SECT 459
Childrens Court may make or amend protection orders(1) This section applies if an application for a care and protection order for a child or young person (the protected child or young person ) has been made but not yet finally decided.
(2) The Childrens Court may—
(a) make a protection order for an affected person against a person if satisfied that if an application for a protection order were made under the relevant Act, the order could have been validly made; or
(b) exercise the jurisdiction of the Magistrates Court under the relevant Act to vary an existing protection order protecting an affected person.
Note 1 A child younger than 10 years old cannot be a respondent to an application for a protection order (see Family Violence Act 2016
, s 75 and Personal Violence Act 2016
, s 14).
Note 2 The Childrens Court may make an interim protection order before adjourning an application or cross-application under s 431 (Interim matters—Court action before adjournment).
(3) The Childrens Court may make a protection order or amend an existing protection order—
(a) on its own initiative; or
(b) on application by a party to the proceeding for the care and protection order; or
(c) on application by the public advocate; or
(d) if the care and protection order is for an Aboriginal or Torres Strait Islander child or young person—the Aboriginal and Torres Strait Islander children and young people commissioner.
Note The procedural requirements set out in ch 19 apply to a proceeding involving a protection order under this division including the following:
• statements, documents and reports must be included in the application (see s 696)
• oral applications may also be made (see s 698)
• in the proceeding, a fact is proved if it is proved on the balance of probabilities (see s 711)
• the court may make an order imposing an obligation on a person only if the person agrees to it, has been given an opportunity to be heard about it or cannot be found (see s 718).
(4) In this section:
"affected person "means—
(a) a protected child or young person against whom family violence has been, or is likely to be, committed; or
(b) a family member of the protected child or young person if family violence has been, or is likely to be, committed—
(i) against the family member by the protected child or young person; or
(ii) by another person against a protected child or young person and that family violence affects the family member.
"family member", of a protected child or young person, means—
(a) a child or young person who is a brother, sister, half-brother, half-sister, stepbrother or stepsister of the protected child or young person; or
(b) a child or young person who lives in the same household as the protected child or young person; or
(c) a parent of, or another person that has parental responsibility for, the protected child or young person.
"family violence"—see the Family Violence Act 2016