DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT 2012 - SECT 42 When court on its own initiative can make or vary order against offender

DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT 2012 - SECT 42

42 When court on its own initiative can make or vary order against offender

(1) This section applies if a court convicts a person (the
"offender" ) of a domestic violence offence.

(2) The court may, on its own initiative, make a protection order against the offender if the court is satisfied that, under section 37 , a protection order could be made against the offender.

(3) Despite section 37 (2) (a) (iii) , in deciding whether to make a protection order under subsection (2) , the court is not required to, but may, consider the offender’s criminal history and domestic violence history.

(4) If a domestic violence order is already in force against the offender, the court—

(a) must consider the order and whether, in the circumstances, the order needs to be varied, including, for example, by varying the date the order ends; and

(b) may, on its own initiative, vary the order.

(5) However, the court may not make a protection order under subsection (2) or vary a domestic violence order under subsection (4) unless the following persons have been given a reasonable opportunity to present evidence and to prepare and make submissions about the making or variation of the order—

(a) the offender;

(b) the prosecuting authority for the offence;

(c) if reasonably practicable, the person who is or would be named as the aggrieved in the order.

(6) A court exercising jurisdiction under this section—

(a) may make the protection order, or vary the domestic violence order, before the offender is discharged by the court or otherwise leaves the court; or

(b) may adjourn the matter of making the protection order, or varying the domestic violence order, to a later fixed time and day and may, in the meantime, make a temporary protection order under division 2 .

(7) If the court adjourns the matter under subsection (6) (b) , the court—

(a) must inform the offender that if the offender does not appear in court at the later time and day to which the matter has been adjourned—

(i) a protection order may be made, or a domestic violence order varied, in the offender’s absence; and

(ii) the court may issue a warrant for the respondent to be taken into custody by a police officer if the court believes that it is necessary for the respondent to be heard; and

(b) may issue any direction that it considers necessary.

(8) If the offender fails to appear at the later time and day to which the matter is adjourned, the court may—

(a) make a protection order against the offender, or vary a domestic violence order against the offender, in the offender’s absence; or

(b) adjourn the matter further and may, in the meantime, make a temporary protection order under division 2 ; or

(c) subject to section 156 (1) , order the issue of a warrant for the offender to be taken into custody by a police officer and brought before the court.

(9) Despite section 158 , a proceeding to make or vary a protection order under this section must be held by the court in open court, other than when the court orders the court be closed.

(10) This section does not limit the power of the court to make any other order against the offender.

(11) To remove any doubt, it is declared that section 145 applies to a proceeding to make or vary a protection order under this section.