DOMESTIC AND FAMILY VIOLENCE ACT 2007 (NO 34 OF 2007) - SECT 145 Repeal and substitution of Part IV, Division 7
DOMESTIC AND FAMILY VIOLENCE ACT 2007 (NO 34 OF 2007) - SECT 145
Repeal and substitution of Part IV, Division 7Part IV, Division 7
repeal, substitute
Part IVA Personal violence restraining orders
Division 1 Preliminary matters
80 Definitions
In this Part:
"defendant", for a personal violence restraining order, means the person against whom the order:
(a) is sought; or
(b) is in force.
"personal violence offence "means an offence against any of the following provisions of the Criminal Code:
(a) Part V, Division 2;
(b) Part VI, Divisions 3 to 6A;
(c) section 211 or 212;
(d) another provision prescribed by regulation.
"personal violence restraining order", see section 82.
"protected person", for a personal violence restraining order, means the person for whose protection the order:
(a) is sought; or
(b) is in force.
81 Object of and achievement of Part
(1) The object of this Part is to ensure the safety and protection of persons who experience personal violence outside a domestic relationship as defined in the Domestic and Family Violence Act .
(2) The object of this Part is to be achieved by providing for:
(a) the making of personal violence restraining orders to protect people from certain violence; and
(b) the enforcement of the orders.
Division 2 Applying for and making orders
82 Application for order
Any of the following persons may apply for an order under this Division (a personal violence restraining order ) for the protection of a person against another person:
(a) the person whose protection is sought under the order;
(b) an adult acting for the person whose protection is sought under the order;
(c) a police officer.
83 Parties to order
(1) Only 1 person may be named as the protected person or defendant in a personal violence restraining order.
(2) The defendant named in a personal violence restraining order cannot be a child under 15 years old.
84 How application is made
An application for a personal violence restraining order must:
(a) be made in the form approved by the Chief Magistrate; and
(b) be filed in the Court.
85 Notice of hearing of application
As soon as practicable after the application is filed, a clerk must give written notice to the protected person and defendant of the time and place for the hearing of the application.
86 Referral to mediation
(1) Before hearing an application for a personal violence restraining order, the Court must refer the protected person and defendant for mediation under the Community Justice Centre Act .
(2) However, the Court must not make a referral and must proceed to hear the application if it is satisfied it is in the interests of justice to do so, including, for example, because:
(a) there is a history of violence committed against the protected person by the defendant; and
(b) there has been a previous attempt at mediation in relation to the same matter and the attempt was not successful.
(3) A referral stays the proceeding until a report is given to the Court under subsection (6).
(4) The referral is taken to be an application under section 13 of that Act for the provision of mediation services for a dispute between the protected person and defendant.
(5) The Director of the Community Justice Centre must accept the application.
(6) The Director must give the Court a written report on the outcome of the mediation or attempted mediation.
(7) The Court may refer the matter back to the Director with directions about the application.
(8) In deciding the application, the Court must take a report of the Director into account.
87 Deciding application
(1) The Court may make a personal violence restraining order if it is satisfied on the balance of probabilities a personal violence offence has been committed, or is likely to be committed, by the defendant against the protected person.
(2) Otherwise, the Court must dismiss the application.
(3) The Court may decide the application even if the defendant does not appear at the hearing.
88 Matters to be considered by Court
(1) In deciding whether to make a personal violence restraining order, the Court must consider the safety and protection of the protected person and any affected child to be of paramount importance.
(2) In addition, the Court must consider the following:
(a) the defendant's criminal record as defined in the Criminal Records (Spent Convictions) Act ;
(b) the defendant's previous conduct whether in relation to the protected person, affected child or someone else;
(c) other matters the Court considers relevant.
(3) In this section:
"affected child" means a child whose wellbeing is affected or likely to be affected by a personal violence offence.
89 Content of orders
(1) A personal violence restraining order may provide for any of the following:
(a) an order imposing the restraints on the defendant stated in the order as the Court considers are necessary or desirable to prevent the commission of a personal violence offence against the protected person;
(b) the other orders the Court considers are just or desirable to make in the circumstances of the particular case.
(2) In this section:
"restraint" includes prohibition.
90 Notice of order
As soon as practicable after a personal violence restraining order is made, the Court must give a copy of it to:
(a) the protected person and defendant; and
(b) the Commissioner of Police.
Division 3 Miscellaneous matters
91 Variation or revocation of order
(1) Any of the following persons may apply to the Court for an order varying (including extending the period the order is in force) or revoking a personal violence restraining order.
(a) the protected person;
(b) a police officer or adult acting for the protected person;
(c) the defendant;
(d) a person granted leave by the Court to make the application.
(2) The defendant may apply for the order only with the leave of the Court.
(3) The Court may grant leave to the defendant only if satisfied there has been a substantial change in the relevant circumstances since the order was made or last varied.
(4) Division 2 applies (with the necessary changes) to the application as if it were an application under that Division.
92 Contravention of order
(1) A person commits an offence if:
(a) a personal violence restraining order is in force against the person; and
(b) the person engages in conduct that results in a contravention of the order.
Maximum penalty: 400 penalty units or imprisonment for 2 years.
(2) Subsection (1) does not apply unless:
(a) the person has been given a copy of the order; or
(b) for an order that has been varied:
(i) the person has been given a copy of the order as varied; or
(ii) the person's conduct also constitutes a contravention of the order last given to the person.
(3) An offence against subsection (1) is:
(a) an offence of strict liability; and
(b) an offence to which Part IIAA of the Criminal Code applies.
Note for subsection (3)
Part IIAA of the Criminal Code states the general principles of criminal responsibility (including burdens of proof and general defences) and defines terms used for offences.
93 Transitional matter for sureties to keep peace
(1) An order in force immediately before the commencement date continues in force until the earlier of the following:
(a) it is revoked;
(b) it would have ended had the repealed provisions not been repealed.
(2) A complaint made for an order that had not been finally decided before the commencement date may be decided after the commencement date.
(3) A summons, warrant or other document issued in relation to an order before the commencement date continues in force after the commencement date.
(4) This section applies despite the repeal of the repealed provisions.
(5) In this section:
"commencement date" means the date on which this Part commences.
"order" means an order under the repealed provisions.
"repealed provisions" means Part IV, Division 7, as in force immediately before the commencement date.