Domestic Violence and Protection Orders Amendment Act 2016 (ACT)

Domestic Violence and Protection Orders Amendment Act 2016

A2016-9

Contents

Page

Part 1      Preliminary

1            Name of Act  2

2            Commencement  2

3            Legislation amended  2

Part 2Domestic Violence and Protection Orders Act 2008

4            Registrar sets return dateSection 22 (1) (b), new note  3

5            Preliminary conferencesNew section 24 (5)  3

6            Preparation for hearings in Magistrates CourtSection 26 (2)  3

7           Section 33  4

8            Sections 34 and 34A  4

9            New section 36  5

10          Interim orders—endingSection 38  8

11          New section 41AA  8

12          General interim orders—taken to be special interim orders if related charges laidSection 41B (3)  9

13          Section 41B (3), new note  9

14          General interim orders—becoming final ordersSection 41C  9

15          Section 42A  9

16          Special interim orders—application not to be decided until related charges finalisedSection 42B (2)  10

17          Service of applicationsSection 63 (1) and note  10

18          New section 63 (4A)  11

19          Section 63 (5) and note  11

20          Service of non-emergency protection ordersNew section 64 (1A)  12

21          If personal service not requiredSection 65  12

22          Section 66  12

Part 3Domestic Violence and Protection Orders Regulation 2009

23          If applicant not present at return of applicationSection 17, new note  13

24          Section 96  13

Domestic Violence and Protection Orders Amendment Act 2016

A2016-9

An Act to amend the Domestic Violence and Protection Orders Act 2008, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1Preliminary

1. Name of Act

   This Act is the Domestic Violence and Protection Orders Amendment Act 2016.

2. Commencement

   This Act commences on the day after its notification day.

   NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

3. Legislation amended

   This Act amends the Domestic Violence and Protection Orders Act 2008 and the Domestic Violence and Protection Orders Regulation 2009.

Part 2Domestic Violence and Protection Orders Act 2008

1. Registrar sets return date
   Section 22 (1) (b), new note

   insert

   NoteThe return date may be for a preliminary conference (see s 24).

2. Preliminary conferences
   New section 24 (5)

   insert

   (5)If a preliminary conference is held, and no consent order is made by the end of the conference, the registrar may set a new return date for a hearing to decide the application.

   Note 1If a general interim order is made, the return date must be at least 21 days after the day the general interim order is made.
   If a special interim order is made, the return date must be not before, and not more than 21 days after, all related charges are finalised (see s 34).

   Note 2The registrar must also make preparations for the hearing to decide the application (see s 26).

3. Preparation for hearings in Magistrates Court
   Section 26 (2)

   omit

   return date for the application

   substitute

   return date for the hearing to decide the application

4. Section 33

   substitute

5. Interim orders—service of application unnecessary

   (1)The Magistrates Court may make an interim order even if a copy of the application and a timing notice have not been served on the respondent in accordance with section 63 (Service of applications).

   (2)In this section:

   timing notice—see section 63 (5).

6. Sections 34 and 34A

   substitute

7. Interim orders—return date for hearing to decide final order

   If the Magistrates Court makes an interim order on an application, the return date for a hearing to decide the application must be, or must be changed to be—

   (a)for a general interim order—at least 21 days after the day the general interim order is made; or

   (b)for a special interim order—

   (i)not earlier than the day all related charges are finalised; and

   (ii)not later than 21 days after the day all related charges are finalised.

   Note 1Finalised

   —see s 42.

   
   Related

   charges—see s 28B.

   
   Special interim order

   —see s 28A.

   Note 2A return date may have already been set at a preliminary conference (see s 24 (5)).

   Note 3If the return date is changed under this section, the registrar may need to serve a revised timing notice (see s 63).

8. New section 36

   insert

9. Interim orders—endorsement of consent or objection

   (1)This section applies if the Magistrates Court makes an interim order in the absence of a respondent.

   NoteFor service of an interim order, see s 64.

   (2)If the respondent wishes to consent to the interim order becoming a final order, the respondent may—

   (a)fill out the endorsement copy of the interim order in accordance with the instructions on the copy; and

   (b)indicate on the endorsement copy that the respondent consents to the interim order becoming a final order; and

   (c)return it to the Magistrates Court before the return date for the application for the final order.

   (3)If the respondent acts under subsection (2), the interim order becomes a final order on the day the Magistrates Court receives the endorsement copy.

   NoteThe court may make consent orders whether or not a party has attended before the court, whether or not a ground for making the order has been made out and without proof or admission of guilt (see s 43).

   (4)If the respondent wishes to object to the interim order becoming a final order, the respondent may—

   (a)fill out the endorsement copy of the interim order in accordance with the instructions on the copy; and

   (b)indicate on the endorsement copy that the respondent objects to the interim order becoming a final order; and

   (c)return it to the Magistrates Court at least 7 days before the return date for the application for the final order to which the interim order relates.

   (5)If the respondent acts under subsection (4), the Magistrates Court may decide the application at—

   (a)for a general interim order—the next return date for the application for the final order; or

   (b)for a special interim order—a return date for the application after all related charges are finalised.

   NoteIf the Magistrates Court makes a special interim order, the Court must not decide the application for the final order until all related charges are finalised (see s 42B).

   (6)If the respondent wishes to object to the interim order becoming a final order but does not act under subsection (4), the Magistrates Court may decide the application for the final order only if the respondent—

   (a)attends the Magistrates Court on the return date for the application for the final order; and

   (b)objects to the interim order becoming a final order; and

   (c)satisfies the court that the respondent—

   (i)has a legal disability and did not have a litigation guardian appointed for the proceeding at any time before the endorsement copy was required to be returned under subsection (4) (c); or

   (ii)has a reasonable excuse for failing to act under subsection (4).

   Examples—par (c) (ii)

   1the respondent was injured in a car accident and unable to return the endorsement copy in the time required

   2the respondent is from a non-English speaking background and no one was able to interpret the endorsement copy for the respondent until after it was required to be returned

   NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

   (7)If the interim order does not become a final order under subsection (3) and the application may not be decided by the Magistrates Court under subsection (5) or (6), the Magistrates Court may decide that the interim order becomes a final order at—

   (a)for a general interim order—the next return date for the application for the final order; or

   (b)for a special interim order—a return date for the application after all related charges are finalised.

   NoteFor the grounds for making final orders (other than workplace orders), see s 46.

   (8)In this section:

   endorsement copy, of an interim order, means the copy of the interim order marked as the endorsement copy under section 64 (1).

   respondent includes a representative of the respondent.

   NoteFor review of final orders, see pt 11.

10. Interim orders—endingSection 38
    

    omit

11. New section 41AA

    insert

41AAGeneral interim orders—ending

A general interim order ends if any of the following happens:

(a)the period stated in the order ends;

Note

A general interim order (other than a consent order) must not be in force for more than 2 years (see s 41A).

A general interim order made as a consent order remains in force for the period of up to 16 weeks stated in the order (see s 45).

(b)the interim order is revoked;

(c)the application on which the interim order was made is discontinued or dismissed;

(d)a final order is made on the application and the respondent is present when it is made;

(e)if a final order is made on the application but the respondent is not present when it is made—the final order is served on the respondent.

1. General interim orders—taken to be special interim orders if related charges laid
   Section 41B (3)

   omit

   return date for the application

   substitute

   return date for a hearing to decide the application

2. Section 41B (3), new note

   insert

   Note 2If the return date is changed under this section, the registrar may need to serve a revised timing notice (see s 63).

3. General interim orders—becoming final orders
   Section 41C

   omit

4. Section 42A

   substitute

42ASpecial interim orders—ending

A special interim order ends only when the first of the following happens:

(a)the special interim order is revoked;

(b)the application on which the special interim order was made is discontinued or dismissed;

(c)a final order is made on the application and the respondent is present when it is made;

(d)if a final order is made on the application but the respondent is not present when it is made—the final order is served on the respondent.

1. Special interim orders—application not to be decided until related charges finalised
   Section 42B (2)

   substitute

   (2)However, the application may be finalised by the court before all related charges are finalised—

   (a)if on return of the application at a preliminary conference the respondent does not appear; or

   (b)by consent.

2. Service of applications
   Section 63 (1) and note

   substitute

   (1)If the court receives an application for a non‑emergency protection order, the registrar must serve—

   (a)on the applicant—a timing notice for the application; and

   (b)on the relevant people—

   (i)a copy of the application; and

   (ii)a timing notice for the application.

3. New section 63 (4A)

   insert

   (4A)If the return date for an application is changed under section 34 (Interim orders—return date for hearing to decide final order) or section 41B (3) (General interim orders—taken to be special interim orders if related charges laid), and the registrar has already served a timing notice for the application, the registrar must serve a revised timing notice on each person already served with a timing notice.

4. Section 63 (5) and note

   substitute

   (5)In this section:

   relevant people means—

   (a)the respondent; and

   (b)anyone else the registrar is satisfied has a relevant interest in the proceeding who does not already have a copy of the application.

   Example—person with a relevant interest in the proceeding

   a parent or guardian of a child who is an aggrieved person if the parent or guardian does not live with the child

   NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

   timing notice, for an application, means a notice stating—

   (a)a return date for the application; and

   (b)if a special interim order is made on the application—that a later return date for a hearing to decide the application will be set after all related charges are finalised.

5. Service of non-emergency protection orders
   New section 64 (1A)

   insert

   (1A)If the registrar is serving a special interim order on a person, the registrar must also give the person a notice telling the person that—

   (a)the respondent may apply to the court for review of the order under section 90A (Application for review of special interim orders); and

   (b)the court will set a return date for a hearing to decide the application after all related charges are finalised.

6. If personal service not required
   Section 65

   omit

7. Section 66

   substitute

8. If personal service impracticable

   (1)This section applies if personal service of an application under this Act is not reasonably practicable.

   (2)The Magistrates Court may order that the application be served in the way, stated in the order, that the court considers is likely to bring the application to the attention of the person required to be served.

Part 3Domestic Violence and Protection Orders Regulation 2009

1. If applicant not present at return of application
   Section 17, new note

   insert

   Note An interim order ends if the application on which the interim order was made is dismissed (see Act, s 41AA and s 42A).

2. Section 96

   substitute

3. Orders—if service impracticable—Act, s 66 (2)

   (1)This section applies if personal service of an application under the Act is not reasonably practicable.

   (2)The Magistrates Court may authorise the registrar or a deputy registrar to exercise the jurisdiction of the court to make an order under the Act, section 66 (2) (If personal service impracticable) in relation to the service of the application.

Endnotes

1. Presentation speech

   Presentation speech made in the Legislative Assembly on 11 February 2016.

2. Notification

   Notified under the Legislation Act on 1 March 2016.

3. Republications of amended laws

   For the latest republication of amended laws, see certify that the above is a true copy of the Domestic Violence and Protection Orders Amendment Bill 2016, which was passed by the Legislative Assembly on 18 February 2016.

   Acting Clerk of the Legislative Assembly

   © Australian Capital Territory 2016