Family Violence Act 2004
An Act to provide for an integrated criminal justice response to family violence which promotes the safety of people affected by family violence
[Royal Assent 17 December 2004]
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
This Act may be cited as the Family Violence Act 2004 .
The provisions of this Act commence on a day or days to be proclaimed.
In the administration of this Act, the safety, psychological wellbeing and interests of people affected by family violence are the paramount considerations.
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 ;[Section 4 Amended by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] Director, MPES means the Director, Monetary Penalties Enforcement Services appointed under section 8 of the Monetary Penalties Enforcement Act 2005 ;economic abuse means an offence in accordance with section 8 ;emotional abuse or intimidation means an offence in accordance with section 9 ;[Section 4 Amended by No. 29 of 2016, Sched. 1, Applied:25 Nov 2017] external family violence order means an order made by a court of 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;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 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 –(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.
(1) Subject to subsection (2) , "court" means a court of summary jurisdiction within the meaning of the Justices Act 1959 .(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 .
Where there is an inconsistency between this Act and another Act, this Act prevails to the extent of that inconsistency.
PART 2 - Family violence offences
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) [Section 7 Amended by No. 32 of 2015, s. 4, Applied:06 Oct 2015] contravening an external family violence order, an interim FVO, an FVO or a PFVO; or(c) [Section 7 Amended by No. 32 of 2015, s. 4, Applied:06 Oct 2015] any damage caused by a person, directly or indirectly, to any property –(i) jointly owned by that person and his or her spouse or partner; or(ii) owned by that person's spouse or partner; or(iii) owned by an affected child.
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 –without the consent of the spouse or partner or affected child;(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 –(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.
9. Emotional abuse or intimidation
(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.
9A. Limitation period for offences under section 8 or 9
[Section 9A Inserted by No. 32 of 2015, s. 5, Applied:06 Oct 2015] A complaint for an offence against section 8 or 9 must be made against a person within 12 months from the day on which the action, or the last action, that made up the course of conduct to which the matter of complaint relates, occurred.
10. Power of police to enter certain premises
(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(ab) [Section 10 Subsection (2) amended by No. 32 of 2015, s. 6, Applied:06 Oct 2015] orally direct any person on the premises to remain on the premises in the company of the police officer, or another police officer stated in the direction, for as long as is reasonably necessary to conduct a search under subsection (3) in respect of that person; and(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.(2A) [Section 10 Subsection (2A) inserted by No. 32 of 2015, s. 6, Applied:06 Oct 2015] If a person is directed to remain on premises under subsection (2)(ab) , a police officer may use such force as is reasonably necessary to detain the person and conduct a search under subsection (3) .(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 the making of an application for an FVO, in respect of that person.(5) Where a police officer reasonably suspects that –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.(a) a person has committed, or is likely to commit, family violence; and(b) the person is in possession or control of a firearm –(6) [Section 10 Subsection (6) amended by No. 32 of 2015, s. 6, Applied:06 Oct 2015] 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 (2A) , (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.(7A) [Section 10 Subsection (7A) inserted by No. 32 of 2015, s. 6, Applied:06 Oct 2015] For the purpose of exercising his or her powers under this section, a police officer may authorise any other person, including another police officer, to assist the police officer as is necessary in the circumstances.(7B) [Section 10 Subsection (7B) inserted by No. 32 of 2015, s. 6, Applied:06 Oct 2015] A person authorised under subsection (7A) to assist a police officer may use such force as is reasonably necessary in the circumstances to so assist.(7C) [Section 10 Subsection (7C) inserted by No. 32 of 2015, s. 6, Applied:06 Oct 2015] A person must comply with a direction given to the person by a police officer under subsection (2)(ab) .Penalty: Fine not exceeding 80 penalty units.(8) In this section –object means any matter, material or thing and includes firearms.
(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 safety, wellbeing and interests of any affected person or affected child.(6) [Section 11 Subsection (6) inserted by No. 29 of 2016, Sched. 1, Applied:25 Nov 2017] A police officer may detain a person for a period reasonably required to enable the police officer to determine the status of a non-local DVO, as defined in the Domestic Violence Orders (National Recognition) Act 2016 .
(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 be likely to 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) [Section 12 Subsection (2) amended by No. 32 of 2015, s. 7, Applied:06 Oct 2015] . . . . . . . .(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.
When determining the sentence for a family violence offence, a court or a judge –(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.
13A. Recording of family violence offences
[Section 13A Inserted by No. 6 of 2017, s. 8, Applied:28 Apr 2017](1) [Section 13A Subsection (1) amended by No. 50 of 2017, s. 4, Applied:12 Dec 2017] If a person pleads guilty to an offence, or is found guilty of an offence, and the court or judge is satisfied that the offence was a family violence offence, the court or judge is to direct that the offence be recorded on the person's criminal record as a family violence offence.(2) [Section 13A Subsection (2) amended by No. 50 of 2017, s. 4, Applied:12 Dec 2017] A court or judge that directs a recording to be made under this section may, on application or on its, his or her own motion, direct that the record be corrected if the court or judge considers that there is an error in the record.(3) [Section 13A Subsection (3) amended by No. 50 of 2017, s. 4, Applied:12 Dec 2017] A record, or a correction of a record, under this section is to be made in the manner, and within the time, determined by the court or judge.(4) In this section –criminal record means a record, containing information about the outcome of criminal proceedings, kept by –(a) a court of this State; or(b) a Government department or State authority within the meaning of the State Service Act 2000 ; or(c) a council.
13B. Effect of failure to submit evidence
[Section 13B Inserted by No. 50 of 2017, s. 5, Applied:12 Dec 2017](1) If –that acquittal does not prevent the admission, in a hearing on the second charge, of first charge evidence as evidence of the relationship between the person and another person, tendency evidence or coincidence evidence.(a) a person is charged with a family violence offence (the first charge) in a court of summary jurisdiction but is acquitted because the prosecution has informed the court that it will not be offering any evidence in support of the charge; and(b) the person is charged with another family violence offence (the second charge), whether in a court of summary jurisdiction or on indictment –(2) In this section –coincidence evidence has the same meaning as in the Evidence Act 2001 ;first charge evidence means evidence that could have been offered by the prosecution in a hearing on the first charge;tendency evidence has the same meaning as in the Evidence Act 2001 .
13C. Limited liability of affected person for instigating, &c., breach of protection order
[Section 13C Inserted by No. 50 of 2017, s. 5, Applied:12 Dec 2017](1) Despite section 73 of the Justices Act 1959 , an affected person named in an external family violence order, an interim FVO, an FVO, a PFVO or a DVO who –may only be taken to be guilty, found guilty or convicted, in accordance with that section, of that relevant family violence offence if the affected person knew, or ought to have known, that his or her conduct in so enabling, aiding, abetting or instigating the commission of that relevant family violence offence by the prescribed person could reasonably be expected to place an affected child named in the order in a position of risk.(a) does any act or makes any omission for the purpose of enabling or aiding a prescribed person to commit a relevant family violence offence in relation to that external family violence order, interim FVO, FVO, PFVO or DVO; or(b) abets a prescribed person in committing a relevant family violence offence in relation to that external family violence order, interim FVO, FVO, PFVO or DVO; or(c) instigates a prescribed person to commit a relevant family violence offence in relation to that external family violence order, interim FVO, FVO, PFVO or DVO –(2) In this section –DVO has the same meaning as in the Domestic Violence Orders (National Recognition) Act 2016 ;position of risk means a position where –(a) the affected child named in the external family violence order, interim FVO, FVO, PFVO or DVO referred to in subsection (1) might witness family violence; or(b) the safety, psychological wellbeing or interests of such an affected child might be affected by family violence;prescribed person means the person against whom the external family violence order, interim FVO, FVO, PFVO or DVO referred to in subsection (1) is made;relevant family violence offence means an offence consisting of the contravention of the external family violence order, interim FVO, FVO, PFVO or DVO referred to in subsection (1) .
PART 3 - Police family violence orders
14. Police family violence orders
(1) [Section 14 Subsection (1) amended by No. 29 of 2016, Sched. 1, Applied:25 Nov 2017] Subject to section 14(2) of the Domestic Violence Orders (National Recognition) Act 2016 , 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 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.(9A) [Section 14 Subsection (9A) inserted by No. 32 of 2015, s. 8, Applied:06 Oct 2015] If an application is made under subsection (9) to vary, extend or revoke a PFVO under this section, the court may make an interim FVO as set out in section 23 .(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 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.
PART 4 - Family violence orders
(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.
(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.(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) [Section 16 Subsection (3) amended by No. 50 of 2017, s. 6, Applied:12 Dec 2017] not possess firearms specified in the order or forfeit or dispose of any firearms in his or her possession;(c) [Section 16 Subsection (3) amended by No. 50 of 2017, s. 6, Applied:12 Dec 2017] submit to being electronically monitored by wearing and not removing, or always carrying, an electronic device which allows –to find or monitor the geographical location of the person.(i) the Commissioner of Police; or(ii) a police officer, State Service officer, State Service employee or other person, or a person of a class of persons (whether police officers, State Service officers, State Service employees or other persons), authorised by the Commissioner of Police –(4) [Section 16 Subsection (4) inserted by No. 50 of 2017, s. 6, Applied:12 Dec 2017] Despite subsections (2) and (3) , the court may only include in an FVO a condition of the kind referred to in subsection (3)(c) –(a) on the application of a police officer who is presenting the case for the applicant for the FVO or, in any other case, the Commissioner of Police; and(b) if the court is satisfied that the person to be electronically monitored –(i) previously has been found guilty of a family violence offence; or(ii) currently is charged with a family violence offence; or(iii) has a history of committing family violence.
17. Issue of replacement residential tenancy agreement
(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) [Section 17 Subsection (1) amended by No. 59 of 2005, s. 16, Applied:01 Jul 2009] terminate the residential tenancy agreement ("the original 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) [Section 17 Subsection (2) amended by No. 59 of 2005, s. 16, Applied:01 Jul 2009] A replacement agreement is to have the same terms and conditions, other than the names of the tenants, as the original agreement.(3) [Section 17 Subsection (3) amended by No. 59 of 2005, s. 16, Applied:01 Jul 2009] Where the original agreement was for a fixed term, the date of expiry of the replacement agreement is to be the same as that of the original agreement.(3A) [Section 17 Subsection (3A) inserted by No. 59 of 2005, s. 16, Applied:01 Jul 2009] Where a court has made an order terminating a residential tenancy agreement and establishing a new residential tenancy agreement and a security deposit has been paid as required under the Residential Tenancy Act 1997 in respect of the original agreement, the court may make an order stating that the deposit in respect of the original agreement is the security deposit in respect of the replacement agreement.(3B) [Section 17 Subsection (3B) inserted by No. 59 of 2005, s. 16, Applied:01 Jul 2009] If an order is made under subsection (3A) –(a) the owner of the residential property may not require any further security deposit in respect of the replacement agreement; and(b) no disbursement or refund of the security deposit is payable under the Residential Tenancy Act 1997 on the termination of the original agreement; and(c) on the termination of the replacement agreement, the security deposit is to be disbursed or refunded as if it were the termination of the original 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.
18. Matters to be considered in making FVO
(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) .
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.
20. Variation, extension and revocation of FVO
(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.
21. Issue of warrants in respect of application
(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.(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.
(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.
23. Court may make interim order
(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) .(1A) [Section 23 Subsection (1A) inserted by No. 32 of 2015, s. 9, Applied:06 Oct 2015] If an application is made under section 14(9) to vary, extend or revoke a PFVO, the court may make an interim FVO, whether or not it is satisfied of the matters set out in section 14(1) .(2) An interim FVO is revoked –whichever is the earlier.(a) when an FVO in respect of the same parties takes effect; or(b) on a date ordered by the court –(3) [Section 23 Subsection (3) amended by No. 32 of 2015, s. 9, Applied:06 Oct 2015] An interim FVO may be varied or extended at any time until the relevant application under section 14 or 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.
If a court hearing an application under this Part 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.
(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 of an FVO; and(b) an interim FVO; and(c) a variation or extension of an interim FVO.
25A. Powers of court to remand in custody, admit to bail, &c.
[Section 25A Inserted by No. 32 of 2015, s. 10, Applied:06 Oct 2015](1) If for any reason the proceedings in respect of an application for an FVO are adjourned, a court may decide to –(a) remand the respondent to the application in custody and issue a warrant accordingly; or(b) admit the respondent to the application to bail; or(c) issue a summons to the respondent to the application ordering the respondent to appear before a court at a time and place, mentioned in the summons, to which the proceedings are adjourned.(2) In making a decision under subsection (1) , the court must consider the safety and interests of the respondent's spouse or partner, and any affected child, to be of paramount importance.(3) If a court remands a respondent to an application for an FVO in custody in accordance with subsection (1)(a) , the court is to –(a) specify in the warrant –(i) that the respondent is to be kept in custody for a period not exceeding 28 days at any one time; and(ii) the date the respondent is to be brought before the court; and(b) inform the respondent of the matters specified in the warrant in accordance with paragraph (a) .(4) The period for which a respondent to an application for an FVO may be admitted to bail in accordance with subsection (1)(b) must not exceed 60 days.
26. Application for registration of external family violence order
(1) [Section 26 Subsection (1) amended by No. 32 of 2015, s. 11, Applied:06 Oct 2015] A person may apply to the Clerk of Petty Sessions for the registration of an external family violence order.(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) [Section 26 Subsection (2) amended by No. 32 of 2015, s. 11, Applied:06 Oct 2015] be accompanied by such evidence of effective service of the external family violence order on the person against whom it was made as the Clerk considers appropriate.
27. Registration of external family violence order
(1) [Section 27 Subsection (1) amended by No. 32 of 2015, s. 12, Applied:06 Oct 2015] On receipt of an application under section 26 , the 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) [Section 27 Subsection (3) amended by No. 32 of 2015, s. 12, Applied:06 Oct 2015] The Clerk of Petty Sessions must register an external family violence order which has been adapted and modified under subsection (2) .(4) [Section 27 Subsection (4) amended by No. 32 of 2015, s. 12, Applied:06 Oct 2015] On registering an external family violence order, the 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.
28. Effect of registration of external family violence order
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.
29. Variation, &c., of registered external family violence order
(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.(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.
PART 5 - Miscellaneous
30. Forms of FVO, PFVO and applications
An FVO, a PFVO or an application under this Act is to be in a form approved by the Chief Magistrate.
31. Procedure in relation to hearing and determining applications
(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) [Section 31 Subsection (2) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] an Australian legal practitioner representing the applicant or respondent;(c) a police officer representing the applicant or respondent;(d) any other person to whom the court grants leave for that purpose.(2A) [Section 31 Subsection (2A) inserted by No. 63 of 2005, s. 4, Applied:09 Dec 2005] At the hearing of an application made by a person other than a police officer –(a) under Part 3 ; or(b) under Part 4 , in respect of an FVO which was made on the application of a police officer –the Commissioner of Police –(c) is taken to be a party; and(d) may make submissions for or against the application; and(e) may examine and cross-examine witnesses.(3) [Section 31 Subsection (3) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] If the applicant is a child, he or she must be represented by a police officer, an Australian 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) [Section 31 Subsection (6) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] The representation of a 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.(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 Justice 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 Justice Division) or the Magistrates Court (Children's Division) under subsection (8) , that court has jurisdiction to hear and determine those proceedings.
32. Restriction of publication of names of parties, &c.
(1) [Section 32 Subsection (1) amended by No. 29 of 2016, Sched. 1, Applied:25 Nov 2017] 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 or under the Domestic Violence Orders (National Recognition) Act 2016 , the court may, either before or during the course of the proceedings or after the proceedings, make an order forbidding the publication of that material.(2) [Section 32 Subsection (2) substituted by No. 32 of 2015, s. 13, Applied:06 Oct 2015] A person must not publish any material that is forbidden to be published under subsection (1) .Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 3 months.(3) [Section 32 Subsection (3) substituted by No. 32 of 2015, s. 13, Applied:06 Oct 2015] A person must not publish any material relating to proceedings under this Act which may disclose the identity of an affected child.Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 3 months.(4) [Section 32 Subsection (4) substituted by No. 32 of 2015, s. 13, Applied:06 Oct 2015] The publication of any reference, or allusion, to any material which is forbidden to be published under subsection (1) or subsection (3) is taken to be a publication of the material, if that reference or allusion is, in the opinion of the court, intended, or is sufficient, to disclose that material.
33. Orders subject to Family Court order
An FVO, an interim FVO, an external family violence order and a PFVO operate subject to any Family Court order.
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.
35. Contravention of FVO or PFVO
(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.(4) For the purposes of this section, an FVO includes an external family violence order registered under section 27 .(5) [Section 35 Subsection (5) inserted by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] If a person who is fined under this section was a party to proceedings in which an order under section 32 was made, the court imposing the fine must advise the Director, MPES of that order at the time of referring the order imposing the fine to the Director, MPES for collection.
36. Power to make orders at hearing of complaint for offence
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.
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.
[Commences: Never commenced
38. Informing of concern about family violence
(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 under the Dental Practitioners Registration Act 2001; and(d) a registered psychologist, within the meaning of the Psychologists Registration Act 2001; 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 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.
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39. Protection from liability for voluntary or mandatory information
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.
39A. Review of effectiveness of use of electronic monitoring
[Section 39A Inserted by No. 50 of 2017, s. 7, Applied:12 Dec 2017](1) As soon as practicable after the end of the relevant period, the Minister is to cause a review to be conducted in respect of the effectiveness of the inclusion in FVOs of a condition that the person who is subject to an FVO submit to being electronically monitored, as specified in section 16(3)(c) .(2) The review is to be completed, and a report on the outcome of the review to be provided to the Minister, no later than 6 months after the end of the relevant period.(3) The Minister is to cause the report on the outcome of the review to be tabled in each House of Parliament within 10 sitting-days after receiving it.(4) In this section –relevant period means the period of 18 months commencing on the commencement of the Family Violence Amendment Act 2017 .
(1) The Governor may make regulations for the purposes of this Act.(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.
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.
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 –any contravention of that order that occurs after the commencement of this Part is to be dealt with as an offence under section 35 .(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 –
A review into the provisions of this Act including an investigation of the effectiveness of its mechanisms will be conducted by the Minister and tabled in Parliament within 3 years of the commencement of the Act.
See Schedule 1 .
SCHEDULE 1 - Consequential AmendmentsThe amendments effected by Section 44 and this Schedule have been incorporated into authorised versions of the following Acts:
(a) Bail Act 1994 ;(b) Children, Young Persons and Their Families Act 1997 ;(c) Criminal Code Act 1924 ;(d) Evidence (Children and Special Witnesses) Act 2001 ;(e) Evidence Act 2001 ;(f) Firearms Act 1996 ;(g) Justices Act 1959 ;(h) Police Offences Act 1935 ;(i) Residential Tenancy Act 1997 ;(j) Sentencing Act 1997 ;(k) Youth Justice Act 1997 .