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TASMANIA
__________
FAMILY VIOLENCE BILL 2004
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Objects of Act
4. Interpretation
5. Meaning of "court"
6. Act to prevail
PART 2 FAMILY VIOLENCE OFFENCES
7. Family violence
8. Economic abuse
9. Emotional abuse or intimidation
10. Power of police to enter certain premises
11. Arrest and detention
12. Bail
13. Sentencing factors
PART 3 POLICE FAMILY VIOLENCE ORDERS
14. Police family violence orders
[Bill 87]-IX
PART 4 FAMILY VIOLENCE ORDERS
15. Application for FVO
16. Family violence orders
17. Issue of replacement residential tenancy agreement
18. Matters to be considered in making FVO
19. Period of FVO
20. Variation, extension and revocation of FVO
21. Issue of warrants in respect of application
22. FVO by consent
23. Court may make interim order
24. Alternative orders
25. When order takes effect
26. Application for registration of external family violence
order
27. Registration of external family violence order
28. Effect of registration of external family violence order
29. Variation, &c., of registered external family violence
order
PART 5 MISCELLANEOUS
30. Forms of FVO, PFVO and applications
31. Procedure in relation to hearing and determining
applications
32. Restriction of publication of names of parties, &c.
33. Orders subject to Family Court order
34. Costs
35. Contravention of FVO or PFVO
36. Power to make orders at hearing of complaint for offence
37. Information sharing
38. Informing of concern about family violence
39. Protection from liability for voluntary or mandatory
information
2
40. Regulations
41. Administration
42. Transitional provisions
43. Consequential Amendments
SCHEDULE 1 CONSEQUENTIAL AMENDMENTS
3
4
FAMILY VIOLENCE BILL 2004
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to provide for an integrated criminal justice
response to family violence which promotes the
safety of people affected by family violence
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
PART 1 PRELIMINARY
Short title
1. This Act may be cited as the Family Violence Act 2004.
Commencement
2. The provisions of this Act commence on a day or days to
be proclaimed.
Objects of Act
3. In the administration of this Act, the safety,
psychological wellbeing and interests of people affected by
family violence are the paramount considerations.
[Bill 87] 5
s. 4 No. Family Violence 2004
Interpretation
4. In this Act, unless the contrary intention appears
"affected child" means a child whose safety,
psychological wellbeing or interests are
affected or likely to be affected by family
violence;
"affected person" means a person against whom
family violence is directed;
"Chief Clerk of Petty Sessions" means the person
holding office as the Chief Clerk of Petty
Sessions under section 16 of the Justices Act
1959;
"economic abuse" means an offence in accordance
with section 8;
"emotional abuse or intimidation" means an
offence in accordance with section 9;
"external family violence order" means an order
made by a court of another State or Territory
of the Commonwealth or New Zealand which
has been made to prevent family violence;
"Family Court order" means an order made under
Part 7 of the Family Law Act 1975 of the
Commonwealth;
"family relationship" means a marriage or a
significant relationship within the meaning of
the Relationships Act 2003, and includes a
relationship in which one or both of the parties
is between the ages of 16 and 18 and would,
but for that fact, be a significant relationship
within the meaning of that Act;
6
2004 Family Violence No. s. 4
"family violence" means family violence as defined
in section 7;
"family violence offence" means any offence the
commission of which constitutes family
violence;
"FVO" means a family violence order made under
section 16;
"harassing" means doing any one or more of the
following actions in respect of a particular
person:
(a) following the person;
(b) keeping the person under surveillance;
(c) loitering outside the residence or
workplace of the person;
(d) loitering outside a place that the person
frequents;
(e) entering or interfering with the property
of the person;
(f) sending offensive material to the person
or leaving offensive material where it is
likely to be found by, given to or brought
to the attention of the person;
(g) publishing or transmitting offensive
material by electronic or any other
means in such a way that the offensive
material is likely to be found by, or
brought to the attention of, the person;
(h) using the internet or any other form of
electronic communication in a way that
7
s. 4 No. Family Violence 2004
could reasonably be expected to cause
the person to be apprehensive or fearful;
(i) contacting the person by postal,
telephonic, electronic or any other
means of communication;
"interim FVO" means an interim FVO made under
section 23;
"PFVO" means a police family violence order made
under section 14;
"premises" includes any, or any part of any, of the
following (whether a public place or private
property):
(a) an area of land;
(b) a building or structure (whether
movable or immovable), including a
residence;
(c) a vehicle, vessel or aircraft;
(d) a caravan or trailer;
"property" includes everything animate or
inanimate that is capable of being owned;
"rehabilitation program assessment" means an
assessment of the suitability of a person to
take part in a structured treatment program
designed to reduce the likelihood that a person
who has committed a family violence offence
will re-offend;
"relevant Family Court order" means, in relation
to an FVO or a PFVO, a Family Court order
relating to access between
8
2004 Family Violence No. s. 5
(a) the person for whose benefit the FVO or
PFVO is sought or made or the person
against whom the FVO or PFVO is
sought or made; and
(b) a child who is a member of the family of
either of those persons;
"residential premises" means residential premises
within the meaning of the Residential Tenancy
Act 1997;
"residential tenancy agreement" means a
residential tenancy agreement within the
meaning of the Residential Tenancy Act 1997;
"risk screening" means an assessment carried out
by a police officer of the likelihood of the
repetition or escalation of family violence;
"safety audit" means an audit carried out by a
police officer of the physical and other
measures immediately available to enhance
the safety of an affected person or affected
child and includes the preparation of a plan to
implement those measures;
"spouse or partner" of a person means another
person with whom the person is, or has been,
in a family relationship.
Meaning of "court"
5. (1) Subject to subsection (2), "court" means a court of
summary jurisdiction within the meaning of the Justices
Act 1959.
9
s. 6 No. Family Violence 2004
(2) A court when constituted by one or more justices
may only exercise the jurisdiction prescribed by rules of
court made under section 144 of the Justices Act 1959.
Act to prevail
6. Where there is an inconsistency between this Act and
another Act, this Act prevails to the extent of that
inconsistency.
10
2004 Family Violence No. s. 7
PART 2 FAMILY VIOLENCE OFFENCES
Family violence
7. In this Act
"family violence" means
(a) any of the following types of conduct
committed by a person, directly or
indirectly, against that person's spouse
or partner:
(i) assault, including sexual assault;
(ii) threats, coercion, intimidation or
verbal abuse;
(iii) abduction;
(iv) stalking within the meaning of
section 192 of the Criminal Code;
(v) attempting or threatening to
commit conduct referred to in
subparagraph (i), (ii), (iii) or (iv);
or
(b) any of the following:
(i) economic abuse;
(ii) emotional abuse or intimidation;
(iii) contravening an external family
violence order, an interim FVO, an
FVO or a PFVO.
11
s. 8 No. Family Violence 2004
Economic abuse
8. A person must not, with intent to unreasonably control
or intimidate his or her spouse or partner or cause his or
her spouse or partner mental harm, apprehension or fear,
pursue a course of conduct made up of one or more of the
following actions:
(a) coercing his or her spouse or partner to
relinquish control over assets or income;
(b) disposing of property owned
(i) jointly by the person and his or her
spouse or partner; or
(ii) by his or her spouse or partner; or
(iii) by an affected child
without the consent of the spouse or partner or
affected child;
(c) preventing his or her spouse or partner from
participating in decisions over household
expenditure or the disposition of joint
property;
(d) preventing his or her spouse or partner from
accessing joint financial assets for the
purposes of meeting normal household
expenses;
(e) withholding, or threatening to withhold, the
financial support reasonably necessary for the
maintenance of his or her spouse or partner or
an affected child.
Penalty: Fine not exceeding 40 penalty units or
imprisonment for a term not exceeding 2
years.
12
2004 Family Violence No. s. 9
Emotional abuse or intimidation
9. (1) A person must not pursue a course of conduct that
he or she knows, or ought to know, is likely to have the
effect of unreasonably controlling or intimidating, or
causing mental harm, apprehension or fear in, his or her
spouse or partner.
Penalty: Fine not exceeding 40 penalty units or
imprisonment for a term not exceeding 2
years.
(2) In this section
"a course of conduct" includes limiting the
freedom of movement of a person's spouse or
partner by means of threats or intimidation.
Power of police to enter certain premises
10. (1) A police officer may, without warrant, and using
such force as is necessary, enter and remain on premises
for such period as he or she considers reasonably
necessary to prevent family violence
(a) at the request of a person who apparently
resides on the premises; or
(b) if the officer reasonably suspects that family
violence is being, has been or is likely to be
committed on those premises.
(2) A police officer who enters premises under
subsection (1) may
(a) arrest, without warrant, any person on those
premises to facilitate the issue of a PFVO, or
the making of an application for an FVO, in
respect of that person; and
13
s. 10 No. Family Violence 2004
(b) remain on those premises in order to conduct a
risk screening, safety audit or forensic
examination with such assistance as is
necessary and reasonable in the
circumstances.
(3) A police officer who enters premises under
subsection (1) may, without warrant
(a) search any person on those premises whom
the officer reasonably suspects of having in his
or her possession any object which the police
officer reasonably suspects has been used, or
may be used, to commit a family violence
offence or has been created in the commission
of a family violence offence; and
(b) search those premises for the presence of any
such object; and
(c) seize and retain any such object.
(4) If a police officer reasonably suspects that a
person has committed family violence and in so acting has
used or created an object, the officer may, without warrant
and using such force as is necessary
(a) enter any premises on which the officer
reasonably suspects that the object may be
found; and
(b) search those premises for the object; and
(c) search any person who the officer reasonably
suspects has possession of the object; and
(d) seize and retain the object; and
(e) arrest, without warrant, any person on those
premises to facilitate the issue of a PFVO, or
14
2004 Family Violence No. s. 10
the making of an application for an FVO, in
respect of that person.
(5) Where a police officer reasonably suspects that
(a) a person has committed, or is likely to commit,
family violence; and
(b) the person is in possession or control of a
firearm
the police officer may enter premises, without warrant and
using such force as is reasonably necessary in the
circumstances, in order to search for and seize the firearm.
(6) On an application made by a police officer or by
any person who claims to be the owner of an object seized
and detained under subsection (3), (4) or (5), a court may
order that the object
(a) be forfeited to the Crown; or
(b) be destroyed; or
(c) be returned to the owner; or
(d) be otherwise disposed of in such manner as
the court thinks fit.
(7) If a police officer reasonably suspects that a
person has committed family violence, the officer, without
warrant and using such force as is reasonably necessary in
the circumstances, may
(a) enter any premises on which the officer
reasonably suspects the person may be found;
and
(b) search those premises for the person; and
(c) arrest the person.
15
s. 11 No. Family Violence 2004
(8) In this section
"object" means any matter, material or thing and
includes firearms.
Arrest and detention
11. (1) Where a police officer reasonably suspects that a
person has committed family violence, the officer may
arrest that person without a warrant.
(2) Subject to subsection (4), a person taken into
custody under this section or section 10 must be brought
before a court as soon as practicable after being taken into
custody unless released unconditionally or under section
34 of the Justices Act 1959.
(3) Subject to subsection (4) of this section, section 4
of the Criminal Law Detention and Interrogation Act 1995
applies to a person taken into custody under
subsection (1).
(4) A police officer may detain a person taken into
custody under subsection (1) for a period reasonably
required to do any or all of the following:
(a) determine the charge or charges which should
be laid in relation to the family violence;
(b) carry out a risk screening or safety audit;
(c) implement the measures identified by a safety
audit where it is practical to do so;
(d) make and serve a PFVO or an application for
an FVO.
(5) In deciding whether to arrest a person under
subsection (1), the police officer is to give priority to the
16
2004 Family Violence No. s. 12
safety, wellbeing and interests of any affected person or
affected child.
Bail
12. (1) A person charged with a family violence offence is
not to be granted bail unless a judge, court or police officer
is satisfied that release of the person on bail would not
adversely affect the safety, wellbeing and interests of an
affected person or affected child.
(2) Without limiting the matters to be taken into
account in considering whether or not to grant bail to a
person, a judge, court or police officer must have regard to
the following:
(a) any available risk screening or rehabilitation
program assessment;
(b) the person's demeanour;
(c) the result of any available safety audit;
(d) the availability of suitable accommodation for
the person and any affected person or affected
child;
(e) any other matter the judge, court or police
officer considers relevant.
(3) Section 34 of the Justices Act 1959 does not apply
to a person charged with an offence under section 35 of
this Act.
Sentencing factors
13. When determining the sentence for a family violence
offence, a court or a judge
17
s. 13 No. Family Violence 2004
(a) may consider to be an aggravating factor the
fact that the offender knew, or was reckless as
to whether, a child was present or on the
premises at the time of the offence, or knew
that the affected person was pregnant; and
(b) must take into account the results of any
rehabilitation program assessment
undertaken in respect of the offender and
placed before the court or judge.
18
2004 Family Violence No. s. 14
PART 3 POLICE FAMILY VIOLENCE ORDERS
Police family violence orders
14. (1) A police officer of the rank of sergeant or above, or
authorised by the Commissioner of Police, may make a
PFVO and issue it to a person if the officer is satisfied that
the person has committed, or is likely to commit, a family
violence offence.
(2) The PFVO must be served on the person to
whom it is issued and a copy sent to the Chief Clerk of
Petty Sessions.
(3) A PFVO may require the person to whom it is
issued to do any or all of the following:
(a) vacate any premises, whether or not that
person has a legal or equitable interest in the
premises;
(b) not enter any premises or only enter premises
on certain conditions, whether or not that
person has a legal or equitable interest in the
premises;
(c) surrender any firearm or other weapon;
(d) refrain from harassing, threatening, verbally
abusing or assaulting an affected person,
affected child or other person named in the
order;
(e) not approach, within a specified distance, an
affected person, an affected child, other person
named in the order or certain premises;
(f) refrain from contacting an affected person,
affected child or other person named in the
19
s. 14 No. Family Violence 2004
order directly or indirectly or otherwise than
under specified conditions.
(4) The affected person is to inform the issuing
officer of any relevant Family Court order.
(5) The terms of a PFVO are to take account of any
relevant Family Court order of which the issuing officer is
aware.
(6) Unless sooner revoked, varied or extended, a
PFVO operates from the date of service for such period,
not exceeding 12 months, as may be specified in the
PFVO.
(7) A police officer of the rank of Inspector or above
may vary a PFVO where
(a) the affected person and the person against
whom it is made consent to the variation; and
(b) the variation will not adversely affect the
safety and interests of the affected person or
any affected child.
(8) A PFVO is revoked by the issue and service of an
FVO or interim FVO in respect of the same parties.
(9) Subject to subsection (10), a court may vary,
extend or revoke a PFVO on the application of a police
officer, an affected person, the person to whom it is issued
or any other person to whom leave is granted, at any time
during its operation.
(10) Where a person has applied to have a PFVO
varied or revoked and the application has been dismissed,
any subsequent application under subsection (9) may only
be made with the leave of the court.
(11) The court is not to grant leave under
subsection (10) unless satisfied that there has been a
20
2004 Family Violence No. s. 14
substantial change in the relevant circumstances since the
order was made.
(12) In determining an application under
subsection (9), a court may make any order which may be
made under Part 4.
(13) A PFVO which has been varied or extended by
a court is taken to be an FVO.
(14) A variation, extension or revocation of a PFVO
takes effect from the date of service.
(15) A PFVO
(a) suspends, for the period during which the
order is in force, any licence or other permit
relating to the possession of a firearm by the
person to whom the order is issued; and
(b) prohibits the person from applying for, or
being granted or issued, any such licence or
other permit during that period.
21
s. 15 No. Family Violence 2004
PART 4 FAMILY VIOLENCE ORDERS
Application for FVO
15. (1) An application for an FVO is to be made to a court.
(2) An application may be made by
(a) a police officer; or
(b) an affected person; or
(c) an affected child, if the court is satisfied that
the child is capable of understanding the
nature of the proceedings; or
(d) any other person to whom leave to apply is
granted by a court.
(3) If an application is made by or on behalf of a
child, a copy of the application is to be sent to the
Secretary of the responsible Department in relation to the
Children, Young Persons and Their Families Act 1997.
(4) An application for an FVO is to include
information of any relevant Family Court order, or of any
pending application for a relevant Family Court order, of
which the applicant or affected person is aware.
Family violence orders
16. (1) A court may make an FVO if satisfied, on the
balance of probabilities, that
(a) a person has committed family violence; and
(b) that person may again commit family violence.
22
2004 Family Violence No. s. 17
(2) An FVO may include such conditions as the court
considers are necessary or desirable to prevent the
commission of family violence against an affected person
or to protect any other person named in the order.
(3) Without limiting the nature of the conditions
which may be included in an FVO, the court may require
the person against whom the FVO is to be made to do one
or more of the following:
(a) vacate premises, not enter premises, or only
enter premises on certain conditions, whether
or not that person has a legal or equitable
interest in the premises;
(b) not possess firearms specified in the order or
forfeit or dispose of any firearms in his or her
possession.
Issue of replacement residential tenancy agreement
17. (1) If the person against whom an FVO is to be made
is a tenant of residential premises occupied by an affected
person, a court may make an order under section 16 to
(a) terminate the residential tenancy agreement;
and
(b) establish a new residential tenancy agreement
("the replacement agreement") for the benefit
of the affected person and any other party who
was party to the terminated agreement other
than the person against whom the FVO is
made.
(2) A residential tenancy agreement established
under subsection (1) is to have the same terms and
conditions, other than the names of the tenants, as the
agreement that was terminated under that subsection.
23
s. 18 No. Family Violence 2004
(3) Where an agreement terminated under this
section is for a fixed term, the date of expiry of the
replacement agreement is to be the same as that of the
terminated agreement.
(4) Before an order is made under this section, any
person having an interest in the residential premises is
entitled to appear and be heard in relation to the matter.
Matters to be considered in making FVO
18. (1) In making an FVO, a court
(a) must consider the safety and interests of the
person for whose benefit the order is sought
and any affected child to be of paramount
importance; and
(b) must consider whether contact between the
person for whose benefit the order is sought,
or the person against whom the FVO is to be
made, and any child who is a member of the
family of either of those persons is relevant to
the making of the FVO; and
(c) must consider any relevant Family Court
order of which the court has been informed.
(2) An FVO is not invalid merely because
(a) the applicant fails to inform the court of any
relevant Family Court order, or of any pending
application for a relevant Family Court order;
or
(b) the court fails to consider access or any
relevant Family Court order as required by
subsection (1).
24
2004 Family Violence No. s. 19
Period of FVO
19. An FVO remains in force
(a) for such period as the court considers
necessary to ensure the safety and interests of
the person for whose benefit the order is made;
or
(b) until an order is made revoking the FVO.
Variation, extension and revocation of FVO
20. (1) A person who may make an application for an
FVO or a person against whom an FVO has been made
may at any time apply to a court for a variation, extension
or revocation of the FVO.
(2) An application referred to in subsection (1) may
only be made with the leave of the court.
(3) The court is not to grant leave under
subsection (2) unless satisfied that there has been a
substantial change in the relevant circumstances since the
order was made or last varied.
(4) Section 18 applies to the variation, extension or
revocation of an FVO in the same manner as it applies to
the making of an FVO.
Issue of warrants in respect of application
21. (1) A court may issue a warrant for the arrest of the
person against whom an FVO is sought if the court is of
the opinion that it is a case of urgency and there is
sufficient cause to do so.
25
s. 22 No. Family Violence 2004
(2) Where a court issues a warrant for the arrest of
a person under subsection (1) and an application for an
FVO has not been filed at the time the warrant is issued,
the application is to be filed as soon as practicable after
the warrant is issued.
FVO by consent
22. (1) A court may make an FVO in terms consented to
by the parties.
(2) In making an FVO by consent, the court may
record that the person against whom the order is made
does not admit any of the matters alleged in the
application for that order.
Court may make interim order
23. (1) At any stage during proceedings under this Part, a
court may make an interim FVO, whether or not it is
satisfied of the matters set out in section 16(1).
(2) An interim FVO is revoked
(a) when an FVO in respect of the same parties
takes effect; or
(b) on a date ordered by the court
whichever is the earlier.
(3) An interim FVO may be varied or extended at
any time until the relevant application under section 15
has been determined.
(4) An interim FVO may be made, varied or
extended in the absence of the person against whom it is
made.
26
2004 Family Violence No. s. 24
Alternative orders
24. If a court hearing an application under Part 4 is not
satisfied of the matters set out in section 16(1) it may, if
satisfied of the matters set out in section 106B(1) of the
Justices Act 1959, make an order in accordance with Part
XA of that Act.
When order takes effect
25. (1) An FVO takes effect
(a) if the respondent to the application is present
before the court when the FVO is made, on the
making of the FVO; or
(b) if the respondent to the application is not
present before the court when the FVO is
made, when the respondent is served
personally with the FVO or a copy of it.
(2) In this section
"FVO" includes
(a) a variation or extension to an FVO; and
(b) an interim FVO; and
(c) a variation to, or extension of, an
interim FVO.
Application for registration of external family
violence order
26. (1) A person may apply to the Chief Clerk of Petty
Sessions for the registration of an external family violence
order.
27
s. 27 No. Family Violence 2004
(2) An application is to
(a) be in a form approved by the Chief Magistrate;
and
(b) be accompanied by a copy of the external
family violence order; and
(c) be accompanied by such evidence of effective
service of the external family violence order on
the person against whom it was made as the
Chief Clerk considers appropriate.
Registration of external family violence order
27. (1) On receipt of an application under section 26, the
Chief Clerk of Petty Sessions must
(a) register the external family violence order to
which the application relates; or
(b) refer that external family violence order to the
court for adaptation and modification.
(2) On the referral of an external family violence
order, the court may
(a) vary the period during which the order has
effect in its operation in this State; and
(b) make such other adaptations and
modifications to the order as it considers
necessary or desirable for its effective
operation in this State.
(3) The Chief Clerk of Petty Sessions must register
an external family violence order which has been adapted
and modified under subsection (2).
28
2004 Family Violence No. s. 28
(4) On registering an external family violence order,
the Chief Clerk of Petty Sessions must provide the
Commissioner of Police with a copy of the registered
external family violence order.
(5) Notice of the registration of an external family
violence order is not to be served on the person against
whom the order was made except where the person who
applied for registration has consented to that service.
(6) A registered external family violence order is
registered for the period during which the order, or the
order as adapted and modified, is in force.
Effect of registration of external family violence
order
28. An external family violence order which has been
registered under section 27(1) or (3)
(a) has the same effect as an FVO made under
this Part; and
(b) may be enforced against a person as if it were
an FVO made under this Part and personally
served on that person.
Variation, &c., of registered external family violence
order
29. (1) A prescribed person may apply for a variation,
extension or revocation of an external family violence
order registered under section 27.
(2) Section 20 applies to an application to vary,
extend or revoke a registered external family violence
order as if it were an application made under that section.
29
s. 29 No. Family Violence 2004
(3) A registered external family violence order
varied or extended under this section is registered for the
period during which the order as varied or extended has
effect in this State.
(4) In this section
"prescribed person" means
(a) a person who applied for the registration
of an external family violence order; or
(b) a person for whose benefit a registered
external family violence order has been
made; or
(c) a person against whom a registered
external family violence order has been
made; or
(d) a person whom the court has granted
leave to make an application under this
section.
30
2004 Family Violence No. s. 30
PART 5 MISCELLANEOUS
Forms of FVO, PFVO and applications
30. An FVO, a PFVO or an application under this Act is to
be in a form approved by the Chief Magistrate.
Procedure in relation to hearing and determining
applications
31. (1) Except as otherwise provided by this Act or
ordered by a court
(a) an application under Part 3 or 4 is to be heard
and determined
(i) in open court; and
(ii) in the same manner, as nearly as
practicable, as a complaint for a simple
offence; and
(b) a person who makes an application under
Part 3 or 4 is to be treated, as nearly as
practicable, as a complainant.
(2) At the hearing of an application under Part 3 or
4, the following persons may conduct the applicant's or
respondent's case and examine and cross-examine
witnesses:
(a) the applicant or respondent;
(b) a legal practitioner representing the applicant
or respondent;
(c) a police officer representing the applicant or
respondent;
31
s. 31 No. Family Violence 2004
(d) any other person to whom the court grants
leave for that purpose.
(3) If the applicant is a child, he or she must be
represented by a police officer, a legal practitioner or a
nominee of the Secretary of the responsible Department in
relation to the Children, Young Persons and Their
Families Act 1997.
(4) If a police officer could, if available as a witness,
give direct oral evidence of a fact in his or her professional
capacity in the hearing of an application under Part 3 or 4,
the statutory declaration of the police officer in relation to
that fact and made in support of the application is, subject
to subsection (5), admissible as evidence of the fact in the
hearing, notwithstanding that the police officer may be
available as a witness.
(5) A statutory declaration referred to in
subsection (4) is not admissible as evidence in the hearing
of an application under Part 3 or 4 if the court, having
regard to all the circumstances, is of the opinion that the
representation in the statutory declaration ought not to be
admitted without being tested by cross-examination.
(6) The representation of a registered medical
practitioner in a document tending to establish a fact is
admissible as evidence of the fact in the hearing of an
application under Part 3 or 4, notwithstanding that the
medical practitioner may be available as a witness, if
(a) the medical practitioner, in his or her
professional capacity, could give direct oral
evidence of the fact in the hearing; and
(b) the court, having regard to all the
circumstances, is of the opinion that justice
does not require that the representation be
tested by cross-examination.
32
2004 Family Violence No. s. 32
(7) If the court hearing an application under Part 3
or 4 is satisfied that
(a) a sealed copy of the application has been
served on the respondent to the application; or
(b) reasonable attempts have been made to serve
a sealed copy of the application on the
respondent
the court may proceed in the absence of the respondent
and may
(c) make the FVO sought in the application or
such other order as the court considers
necessary; or
(d) issue a warrant for the arrest of the
respondent.
(8) At any time in proceedings under Part 3 or 4, the
court may determine that it is appropriate that those
proceedings be heard and determined by the Magistrates
Court (Youth Division) or the Magistrates Court
(Children's Division) and may transfer the proceedings to
that court.
(9) If proceedings are transferred to the Magistrates
Court (Youth Division) or the Magistrates Court
(Children's Division) under subsection (8), that court has
jurisdiction to hear and determine those proceedings.
Restriction of publication of names of parties, &c.
32. (1) Where it appears to a court that in the interests of
the administration of justice it is desirable to prohibit the
publication of any material relating to proceedings before
the court under this Act, the court may, either before or
during the course of the proceedings or after the
33
s. 33 No. Family Violence 2004
proceedings, make an order forbidding the publication of
that material.
(2) The court must make an order forbidding the
publication of any material relating to proceedings under
this Act which may disclose the identity of an affected
child.
(3) The publication of any reference or allusion to
any material which is forbidden to be published under
subsection (1) or (2), if that reference or allusion is, in the
opinion of the court, intended, or is sufficient, to disclose
that material, is taken to be a publication of the material.
(4) A person must not print or publish any material
that is forbidden to be published under subsection (1) or
(2).
Penalty: Fine not exceeding 50 penalty units or
imprisonment for a term not exceeding 3
months.
Orders subject to Family Court order
33. An FVO, an interim FVO, an external family violence
order and a PFVO operate subject to any Family Court
order.
Costs
34. The court hearing an application under this Act made
by a person other than a police officer may, if the court
thinks fit, order either party to pay such costs as the court
considers reasonable.
34
2004 Family Violence No. s. 35
Contravention of FVO or PFVO
35. (1) A person who contravenes an FVO, PFVO or
interim FVO, as made, varied or extended, is guilty of an
offence and is liable on summary conviction to
(a) in the case of a first offence, a fine not
exceeding 20 penalty units or to imprisonment
for a term not exceeding 12 months; or
(b) in the case of a second offence, a fine not
exceeding 30 penalty units or to imprisonment
for a term not exceeding 18 months; or
(c) in the case of a third offence, a fine not
exceeding 40 penalty units or to imprisonment
for a term not exceeding 2 years; or
(d) in the case of a fourth or subsequent offence,
to imprisonment for a term not exceeding 5
years.
(2) For the purposes of this section, a previous
offence means any contravention of an FVO, PFVO or
interim FVO, regardless of whether the order was made
for the protection of the same affected person.
(3) In any proceedings for an offence under this
section, an allegation in the complaint is evidence that
(a) an FVO, PFVO or interim FVO has been made
against the person charged with the offence;
and
(b) the order was in force at the time of the
alleged contravention; and
(c) the requirement or condition alleged to have
been contravened formed part of that FVO,
PFVO or interim FVO.
35
s. 36 No. Family Violence 2004
(4) For the purposes of this section, an FVO includes
an external family violence order registered under
section 27.
Power to make orders at hearing of complaint for
offence
36. Where, in proceedings for a family violence offence,
the court or a judge is satisfied on the balance of
probabilities as to the matters set out in section 16(1), the
court or judge may make an order under this Act in
addition to any other order which the court or judge may
make.
Information sharing
37. A personal information custodian, within the meaning
of the Personal Information Protection Act 2004, acting in
good faith, does not commit a breach of that Act by reason
only of collecting, using, disclosing or otherwise dealing
with personal information for the purpose of furthering
the objects of this Act.
Informing of concern about family violence
38. (1) In this section
"prescribed person" means
(a) a registered medical practitioner; and
(b) a nurse, within the meaning of the
Nursing Act 1995; and
(c) a person who is registered as a dentist,
dental therapist or dental hygienist
36
2004 Family Violence No. s. 38
under the Dental Practitioners
Registration Act 2001; and
(d) a registered psychologist, within the
meaning of the Psychologists
Registration Act 2000; and
(e) a police officer; and
(f) a correctional officer or probation officer
appointed or employed under section 5 of
the Corrections Act 1997; and
(g) a principal or a teacher in any
educational institution (including a
kindergarten); and
(h) a person who provides child care, or a
child care service, for fee or reward; and
(i) a person concerned in the management
of a child care service licensed under the
Child Care Act 2001; and
(j) any other person of a class determined
by the Minister by notice in the Gazette
to be prescribed persons.
(2) If a prescribed person, in carrying out official
duties or in the course of his or her work (whether paid or
voluntary), believes, or suspects, on reasonable grounds, or
knows, that family violence involving the use of a weapon,
sexual violence or physical violence, or where a child is
affected, has occurred or is likely to occur, the prescribed
person must inform a police officer as soon as practicable.
Penalty: Fine not exceeding 20 penalty units.
(3) Whether a person informs a police officer under
subsection (2) verbally or in writing, the person must
include in the information his or her name and address
37
s. 39 No. Family Violence 2004
and a statement of the observations, information, opinions
and other grounds upon which the belief, suspicion or
knowledge is based.
(4) It is a defence in proceedings for an offence
under subsection (2) if the person charged establishes that
he or she honestly and reasonably believed that a police
officer had been informed by another person of the
relevant belief, suspicion or knowledge.
Protection from liability for voluntary or
mandatory information
39. A person who (whether voluntarily or as required by
section 38) informs a police officer that he or she believes,
reasonably suspects or knows that family violence
involving the use of a weapon, sexual violence or physical
violence, or where a child is affected, has occurred or is
likely to occur, or who provides any further information to
a police officer in respect of such belief, suspicion or
knowledge
(a) cannot, by virtue of doing so, be held to have
breached any code of professional etiquette or
ethics, or to have departed from any accepted
form of professional conduct; and
(b) insofar as he or she has acted in good faith,
incurs no civil or criminal liability in respect
of
(i) so informing a police officer; or
(ii) the provision of further information.
38
2004 Family Violence No. s. 40
Regulations
40. (1) The Governor may make regulations for the
purposes of this Part.
(2) Regulations may be made so as to apply
differently according to any matter, condition, limitation,
restriction, exception or circumstance specified in the
regulations.
(3) The regulations may
(a) provide that a contravention of, or a failure to
comply with, any of the regulations is an
offence; and
(b) in respect of such an offence, provide for the
imposition of a fine not exceeding 200 penalty
units and, in the case of a continuing offence, a
further fine not exceeding 20 penalty units for
each day during which the offence continues.
(4) The regulations may
(a) authorise any matter to be determined,
applied or regulated by a specified person or
body; and
(b) confer a power or impose a duty on a specified
person or class of persons.
(5) The regulations may adopt or incorporate, with
or without modification, the whole or part of any standard,
rule, code, specification or guidelines, as amended from
time to time issued, prescribed, made or published by any
person or body before or after the regulations take effect.
39
s. 41 No. Family Violence 2004
Administration
41. Until provision is made in relation to this Act by order
under section 4 of the Administrative Arrangements Act
1990
(a) the administration of this Act is assigned to
the Minister for Justice and Industrial
Relations; and
(b) the department responsible to that Minister in
relation to the administration of this Act is the
Department of Justice.
Transitional provisions
42. Where a restraint order, an interim restraint order, a
telephone interim restraint order or a registered external
restraint order, all within the meaning of Part XA of the
Justices Act 1959, has been made under that Part
(a) before the commencement of section 35; and
(b) for the benefit of the spouse or partner of the
person against whom the order was made
any contravention of that order that occurs after the
commencement of Part 5 of this Act is to be dealt with as
an offence under section 35.
Consequential Amendments
43. The legislation specified in Schedule 1 is amended as
specified in that Schedule.
40
2004 Family Violence No. sch. 1
SCHEDULE 1 CONSEQUENTIAL AMENDMENTS
Section 43
Bail Act 1994
1. Section 5(3A) is amended by inserting after paragraph
(b) the following paragraph:
(ba) a condition of a family violence order, police
family violence order or interim family
violence order, made under the Family
Violence Act 2004;
Children, Young Persons and Their Families Act
1997
1. Section 4(1) is amended by inserting after paragraph
(b) the following paragraph:
(ba) the child is an affected child within the
meaning of the Family Violence Act 2004; or
2. Section 14(2)(a) is amended by inserting "or is an
affected child within the meaning of the Family Violence
Act 2004" after "neglected".
Criminal Code Act 1924
1. Schedule 1 is amended as follows:
(a) by inserting the following section after section
184:
41
sch. 1 No. Family Violence 2004
Assault on pregnant woman
184A. Any person who unlawfully assaults a
woman, knowing that woman to be pregnant
is guilty of a crime.
Charge: Assault on pregnant woman.
(b) by inserting in Appendix A after
Forcible abduction.
the following item:
Stalking.
Evidence (Children and Special Witnesses) Act
2001
1. Section 3 is amended as follows:
(a) by inserting the following paragraph after
paragraph (a) in the definition of "affected
child":
(ab) who is giving, or is to give,
evidence in respect of family
violence, within the meaning of
the Family Violence Act 2004;
(b) by inserting the following paragraphs after
paragraph (a) in the definition of "prescribed
proceeding":
(ab) a proceeding in which a person
has been charged with a family
violence offence, within the
42
2004 Family Violence No. sch. 1
meaning of the Family Violence
Act 2004; or
(ac) an application to a court under
Part 3 or 4 of the Family Violence
Act 2004; or
Evidence Act 2001
1. Section 19 is amended by inserting after paragraph (f)
the following paragraph:
(fa) the defendant is charged with family violence,
within the meaning of the Family Violence Act
2004; or
Firearms Act 1996
1. Section 3 is amended as follows:
(a) by inserting the following definition after the
definition of "dealings record":
"family violence order" means a
family violence order within the
meaning of the Family Violence
Act 2004;
(b) by inserting the following definition after the
definition of "heirloom firearm":
"interim family violence order"
means an interim family violence
order within the meaning of the
Family Violence Act 2004;
43
sch. 1 No. Family Violence 2004
(c) by inserting the following definition after the
definition of "pistol":
"police family violence order" means
a police family violence order
within the meaning of the Family
Violence Act 2004;
2. Section 51 is amended as follows:
(a) by inserting in subsection (1) "or a family
violence order or police family violence order"
after "injury";
(b) by inserting in subsection (7)(b) "or family
violence order or police family violence order"
after "interim restraint order".
3. Section 53(1) is amended by inserting "or an interim
family violence order" after "order".
Justices Act 1959
1. Section 3(1) is amended by inserting after the definition
of "extra-territorial justice" the following definitions:
"family violence order" means a family violence
order within the meaning of the Family
Violence Act 2004 and includes a police family
violence order and an interim family violence
order under that Act;
"family violence offence" means a family violence
offence within the meaning of the Family
Violence Act 2004;
2. Section 34(2) is amended as follows:
44
2004 Family Violence No. sch. 1
(a) by inserting "for a family violence offence or"
after "custody";
(b) by inserting "family violence order or" after
"application for a";
(c) by inserting in paragraph (a) "against whom
the offence was committed or" after "person";
(d) by inserting in paragraph (a) "family violence
order," after "benefit the";
(e) by inserting in paragraph (b) "against whom
the offence was committed or" after "the
person";
(f) by inserting in paragraph (b) "family violence
order," after "benefit the";
(g) by inserting in paragraph (b) "family violence
order or" after "prior".
3. Section 144 is amended as follows:
(a) by inserting the following paragraph after
paragraph (cd) in subsection (4):
(ce) the practice and procedure
relating to matters arising under
the Family Violence Act 2004;
(b) by inserting the following subsection after
subsection (6):
(7) Rules made under subsection (4)(ce)
may authorise justices, upon such terms and
conditions as they think necessary, to dispense
with the need for compliance by a party to
proceedings under the Family Violence Act
2004 with the provisions of any such rules.
45
sch. 1 No. Family Violence 2004
Police Offences Act 1935
1. Section 3(1) is amended by inserting after the definition
of "data" the following definition:
"family violence order" means a family violence
order within the meaning of the Family
Violence Act 2004, and includes a police family
violence order and an interim family violence
order, within the meaning of that Act;
2. Section 55(2E) is amended by inserting "or a family
violence order" after "Part XA of the Justices Act 1959".
Residential Tenancy Act 1997
1. Section 37(1) is amended by inserting after paragraph
(d) the following paragraph:
(da) the making of an order of termination in
accordance with section 17 of the Family
Violence Act 2004; or
Sentencing Act 1997
1. Section 4 is amended as follows:
(a) by inserting the following definition after the
definition of "escape offence":
"family violence offence" means a
family violence offence within the
meaning of the Family Violence
Act 2004;
46
2004 Family Violence No. sch. 1
(b) by inserting the following definitions after the
definition of "proper officer":
"rehabilitation program" means a
structured treatment program
designed to reduce the likelihood
of a person who has committed a
family violence offence re-
offending;
"rehabilitation program order"
means an order to attend and
participate in a rehabilitation
program and in doing so comply
with the reasonable directions of a
person employed or engaged to
conduct such a program;
2. Section 7 is amended by inserting after paragraph (e)
the following paragraph:
(ea) in the case of a family violence offence, with or
without recording a conviction, make a
rehabilitation program order; or
3. Section 8 is amended as follows:
(a) by inserting the following paragraph after
paragraph (c) in subsection (1):
(ca) make a rehabilitation program
order;
(b) by inserting the following paragraph after
paragraph (b) in subsection (2):
(ba) make a rehabilitation program
order;
(c) by omitting from subsection (3) "either or
both" and substituting "any one or more";
47
sch. 1 No. Family Violence 2004
(d) by inserting the following paragraph after
paragraph (a) in subsection (3):
(ab) make a rehabilitation program
order;
(e) by omitting subsection (4) and substituting the
following subsection:
(4) A court that orders an offender to
pay a fine may also do either or both of the
following:
(a) make a rehabilitation program
order;
(b) make a driving disqualification
order in respect of the offender.
4. After section 54, the following Part is inserted:
PART 6A REHABILITATION PROGRAMS
Contravention of rehabilitation program order
54A. (1) An offender who contravenes a
rehabilitation program order is guilty of an offence.
(2) Proceedings for an offence under
subsection (1) are to be commenced by a complaint
under the Justices Act 1959.
(3) The complaint is to be made by an
authorised person.
(4) If, on the hearing of the complaint, the
court is satisfied by evidence on oath or otherwise
that the offender has committed an offence under
subsection (1), the court may do either or both of the
following:
48
2004 Family Violence No. sch. 1
(a) impose a fine not exceeding 10 penalty
units;
(b) impose a term of imprisonment not
exceeding 3 months.
(5) In addition to or instead of exercising its
power under subsection (4), in the circumstances
referred to in that subsection, the court may do one
or more of the following:
(a) order the offender to resume
undertaking the program;
(b) cancel the rehabilitation program order
and deal with the offender in any
manner in which the court could deal
with the offender had it just found the
offender guilty of the offence which gave
rise to the order.
(6) In determining how to deal with an
offender found guilty of an offence under this
section, the court must take into account the extent
to which the offender had undertaken the
rehabilitation program before committing the
offence.
5. After section 89, the following section is inserted in
Division 1:
Pre-sentence report includes rehabilitation
program assessment
89A. In this Division, in the case of a family
violence offence
"pre-sentence report" includes a
rehabilitation program assessment.
49
sch. 1 No. Family Violence 2004
Youth Justice Act 1997
1. Section 3(1) is amended as follows:
(a) by inserting the following definition after the
definition of "facilitator":
"family violence offence" means a
family violence offence within the
meaning of the Family Violence
Act 2004;
(b) by inserting the following definitions after the
definition of "regulations":
"rehabilitation program" means a
structured treatment program
designed to reduce the likelihood
of a person who has committed a
family violence offence re-
offending;
"rehabilitation program order"
means an order to attend and
participate in a rehabilitation
program and in doing so comply
with the reasonable directions of a
person employed or engaged to
conduct such a program;
2. Section 24 is amended by omitting paragraph (b) and
substituting the following paragraph:
(b) the arrest is necessary to facilitate the making
of a police family violence order, within the
meaning of the Family Violence Act 2004, an
application for a family violence order under
that Act or an application for a restraint order
under Part XA of the Justices Act 1959; or
50
2004 Family Violence No. sch. 1
3. After section 33, the following section is inserted in
Division 3:
Court may order rehabilitation program
assessment
33A. In any proceedings under this Part in relation
to a family violence offence the Court may, in
addition to the matters referred to in section 33
(a) order a rehabilitation program
assessment of a youth; and
(b) direct the youth to submit to that
assessment.
4. Section 34 is amended by inserting "and any
rehabilitation program assessment" after "report".
5. Section 35(1) is amended as follows:
(a) by inserting "and any rehabilitation program
assessment" after "presentence report";
(b) by inserting "or assessment" after "the
report".
6. Section 36 is amended as follows:
(a) by inserting in subsection (1) "or rehabilitation
program assessment" after "report";
(b) by inserting in subsection (2) "or rehabilitation
program assessment" after "presentence
report";
(c) by inserting in subsection (2) "or assessment"
after "take the report";
(d) by inserting in subsection (2)(b) "or
assessment" after "report".
51
sch. 1 No. Family Violence 2004
7. Section 47(1) is amended as follows:
(a) by omitting from paragraph (h) "order." and
substituting "order;";
(b) by inserting the following paragraph after
paragraph (h):
(i) in the case of a family violence
offence, make a rehabilitation
program order.
8. Section 48 is amended by inserting after subsection (2)
the following subsection:
(3) The Court must not impose a sentence
referred to in section 47(1)(i) unless it has first
obtained a rehabilitation program assessment.
9. Section 49 is amended as follows:
(a) by omitting from subsection (1) "or (h)" and
substituting ", (h) or (i)";
(b) by omitting from subsection (2) "or (g)" and
substituting ", (g) or (i)".
10. After section 99, the following Division is inserted in
Part 4:
Division 14A Failure to undertake
rehabilitation program
Contravention of rehabilitation program order
99A. (1) A prescribed person may apply to the
Court for an order under subsection (4) if it appears
to the prescribed person that a youth has
contravened a rehabilitation program order.
52
2004 Family Violence No. sch. 1
(2) A copy of the application and notice of the
time and place of the hearing of the application is to
be served by the applicant not less than 7 days
before the hearing on
(a) the youth; and
(b) a guardian unless one cannot be found
after reasonable inquiry.
(3) The Court may issue a warrant to arrest
the youth if
(a) the youth fails to appear at the hearing
of the application; or
(b) reasonable efforts have been made to
serve the application on the youth but
have been unsuccessful.
(4) If the Court is satisfied that a youth has
contravened a rehabilitation program order, the
Court may do one or more of the following:
(a) order the youth to resume undertaking
the program;
(b) revoke the rehabilitation program order
and, where appropriate, any other order
made under section 47 and make
another order under that section in
respect of the offence.
(5) In determining what order to make under
subsection (4), the Court must consider
(a) any report on the youth provided by the
prescribed person; and
53
sch. 1 No. Family Violence 2004
(b) the extent to which, and the manner in
which, the youth has undertaken the
rehabilitation program.
(6) The Court must not make an order under
subsection (4) unless the youth is present before the
Court.
54 Government Printer, Tasmania