Family and Personal Violence Legislation Amendment Act 2017 (ACT)
Family and Personal Violence Legislation Amendment Act 2017
A2017-10
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Legislation amended 2
Part 2Evidence (Miscellaneous Provisions) Act 1991
4 Division 4.3.3 heading 3
5 Recorded statement—offence to publishSection 81G (2) 3
6 New division 4.3.4 4
Part 3Family Violence Act 2016
7 Section 2 5
8 Principle about proceduresSection 12 6
9 New section 13A 7
10 Matters to be considered—family violence ordersSection 14 (1) (i) 7
11 New section 14 (2A) 7
12 New sections 16A and 16B 7
13 Application forms that require affected person’s addressSection 17 (2), new note 8
14 Interim orders—only on application for final orderSection 20 (2) 8
15 General interim orders—lengthSection 24 (2) and note 8
16 General interim orders—taken to be special interim orders if related charges laidSection 26 (2), new note 8
17 Section 26 (3) and note 9
18 Special interim orders—application not to be decided until related charges finalisedSection 31 (2) (a) 9
19 Special interim orders—final application decidedSection 32 (1), note 9
20 Section 32 (5) 10
21 New section 33A 10
22 Final orders—length Section 35 (1), note 11
23 Divisions 4.1 and 4.2 11
24 Sections 55, 56 and 57 16
25 Public hearing not requiredSection 59 (a), (b) and (c) 16
26 New section 59 (2) 17
27 New sections 60A to 60D 17
28 DiscontinuanceSection 61 (1), note 19
29 New section 62A 19
30 Service of protection ordersSection 70 19
31 New division 4.4A 20
32 New section 71A 23
33 Directions about procedure Section 72 23
34 CostsSection 73 (2), note 23
35 Litigation guardian—appointmentSection 78 (1) (a) 24
36 New section 82A 24
37 Amendment of protection ordersSection 83 (1) (a) 24
38 Section 83 (1), example and note 25
39 Section 83 (5) and note 25
40 General interim orders made by consent—extensionSection 85 (1) 25
41 Section 85 (2) 25
42 Final orders—extensionSection 86 (3), (4) and (5) and note 25
43 Special interim orders—application for reviewSection 87 (d) 25
44 Special interim orders—review Section 88 (3) 26
45 Section 89 heading 26
46 Section 89 (1) 26
47 Section 89 (1), note 26
48 New section 89 (3A) 26
49 Section 90 heading 27
50 Section 90 (3) 27
51 Consent orders—reviewSection 91 (1) 27
52 Section 91 (1) 27
53 New section 91A 28
54 Giving notice of appealSection 94 28
55 Court-initiated interim ordersSection 112 (1), note 28
56 Interim court-initiated protection order taken to be special interim orderSection 113 (a) 29
57 Section 113 (e) and (f) 29
58 Definitions—pt 9Section 115, definition of registered foreign order 29
59 Meaning of properly notified—pt 9Section 117 30
60 Making new ordersSection 123 (2) 30
61 New division 9.3A 30
62 New sections 198 and 199 31
63 New section 199 (2A) 32
64 Existing registered orders under repealed ActSection 200 (4) 32
65 New section 200A 32
66 Dictionary, note 2 32
67 Dictionary, note 2 33
68 Dictionary, new definition of returned 33
69 Dictionary, definition of timing notice 33
Part 4Personal Violence Act 2016
70 Principle about proceduresSection 9 34
71 New section 10A 34
72 Matters to be considered—protection ordersSection 11 (1) (f) 34
73 New section 11 (2A) 34
74 New sections 13A and 13B 35
75 Application forms that require affected person’s addressSection 14 (2), new note 35
76 Interim orders—only on application for final orderSection 17 (2) 35
77 Interim orders—lengthSection 20 (2) and note 36
78 New section 24A 36
79 Final orders—length Section 27 (1), note 37
80 Divisions 4.1 and 4.2 37
81 Sections 50, 51 and 52 43
82 Public hearing not requiredSection 54 (a), (b) and (c) 43
83 New section 54 (2) 43
84 New sections 55A to 55D 44
85 DiscontinuanceSection 56 (1), note 46
86 New section 57A 46
87 Service of protection ordersSection 64 46
88 New division 4.4A 47
89 New section 65A 50
90 Directions about procedure Section 66 50
91 CostsSection 67 (2), note 50
92 Litigation guardian—appointmentSection 72 (1) (a) 50
93 New section 76A 51
94 Amendment of protection ordersSection 77 (1) (a) 51
95 Section 77 (1), example and note 51
96 Section 77 (5) and note 51
97 Interim orders made by consent—extensionSection 79 (1) 52
98 Section 79 (2) 52
99 Final orders—extensionSection 80 (3), (4) and (5) and note 52
100 Section 81 heading 52
101 Section 81 (1) 52
102 Section 81 (1), note 52
103 New section 81 (3A) 53
104 Section 82 heading 53
105 Section 82 (3) 53
106 Consent orders—reviewSection 83 (1) 53
107 Section 83 (1) 53
108 New section 83A 54
109 Giving notice of appealSection 86 54
110 New sections 198 and 199 54
111 Existing registered orders under repealed ActSection 200 (1) (a) 55
112 Dictionary, note 2 55
113 Dictionary, note 2 55
114 Dictionary, new definition of returned 56
115 Dictionary, definition of timing notice 56
Family and Personal Violence Legislation Amendment Act 2017
A2017-10
An Act to amend legislation about family and personal violence, and for other purposes
The Legislative Assembly for the Australian Capital Territory enacts as follows:
Part 1Preliminary
Name of Act
This Act is the Family and Personal Violence Legislation Amendment Act 2017.
Commencement
(1)This Act (other than the following provisions) commences on 30 April 2017:
· sections 58 to 61
· sections 63 and 64.
Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
(2)The provisions mentioned in subsection (1) commence on the commencement of the Family Violence Act 2016, section 115 (Definitions—pt 9).
Legislation amended
This Act amends the following legislation:
· Evidence (Miscellaneous Provisions) Act 1991
· Family Violence Act 2016
· Personal Violence Act 2016.
Part 2Evidence (Miscellaneous Provisions) Act 1991
Division 4.3.3 heading
substitute
Division 4.3.3 Recorded statement of police interview admissible as evidence—family violence offence proceedings
Recorded statement—offence to publish
Section 81G (2)substitute
(2)For this section, a person has authority to publish a recorded statement only if the person publishes the recorded statement in connection with—
(a)the investigation of, or a proceeding for, an offence in relation to which the recorded statement is prepared; or
(b)a re‑hearing, re‑trial or appeal in relation to the proceeding; or
(c)a proceeding for an application for a protection order under the Family Violence Act 2016 if—
(i)the affected person in relation to the application for the protection order is the complainant in relation to the recorded statement; and
(ii)the respondent to the application for the protection order is the person against whom the family violence offence, the subject of the recorded statement, is alleged.
New division 4.3.4
insert
Division 4.3.4 Recorded statement of police interview admissible as evidence—application for protection order
81HRecorded statement—may be admitted as evidence in application for family violence protection order
(1)This section applies if a recorded statement is made in relation to an alleged family violence offence.
(2)The recorded statement may be admitted by the Magistrates Court in a proceeding for an application for a protection order under the Family Violence Act 2016 if—
(a)the affected person in relation to the application for the protection order is the complainant in relation to the recorded statement; and
(b)the respondent to the application for the protection order is the person against whom the family violence offence is alleged.
Part 3Family Violence Act 2016
Section 2
substitute
Commencement
(1)The following provisions (the national recognition provisions) commence on a day fixed by the Minister by written notice:
· part 9 (National recognition of FVOs)
· section 200 (Existing registered orders under repealed Act)
· dictionary, definitions of
corresponding law
family violence concern
family violence order, paragraph (b)
final FVO
foreign order
FVO
general violence order
interim FVO
interstate FVO
interstate law enforcement agency
issuing authority
issuing jurisdiction
jurisdiction
local FVO
local law enforcement agency
make
New Zealand FVO
non-local FVO
participating jurisdiction
properly notified
recognised amendment
recognised FVO
registered foreign order.
NoteA single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).
(2)The remaining provisions commence on 1 May 2017.
Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
(3)If the national recognition provisions have not commenced within 12 months beginning on this Act’s notification day, they automatically commence on the first day after that period.
(4)The Legislation Act, section 79 (Automatic commencement of postponed law) does not apply to the national recognition provisions.
Principle about procedures
Section 12omit
under
substitute
for
New section 13A
in division 2.3, insert
13ARules of evidence
To remove any doubt, the Magistrates Court need not comply with the rules of evidence applying in the ACT in a proceeding under this Act.
NoteThe Magistrates Court may inform itself in any way it considers appropriate in a proceeding for a family violence order (see s 65).
Matters to be considered—family violence orders
Section 14 (1) (i)omit
New section 14 (2A)
insert
(2A)A failure of the court to comply with subsection (1) in relation to a family violence order does not affect the validity of the order.
New sections 16A and 16B
insert
16AChild may apply for protection order in same application as parent
(1)This provision applies if a child and the child’s parent are each an affected person in relation to the same or similar family violence by a respondent.
(2)An application for a protection order by the child may be included in an application for a protection order by the child’s parent.
NoteThe court may hear the application of the child and the child’s parent separately (see s 60C).
16BApplications by police officers
(1)This section applies if a police officer makes an application for a protection order for an affected person.
(2)The police officer must tell the Magistrates Court whether the affected person consents to the application.
Application forms that require affected person’s address
Section 17 (2), new noteinsert
NoteIf a party to an application for a protection order is not represented by a lawyer, any address for service given to the court must not be given to the other party without the self-represented party’s consent (see s 70D).
Interim orders—only on application for final order
Section 20 (2)substitute
(2)The Magistrates Court may make an interim order at any time before the application for the final order is decided.
General interim orders—length
Section 24 (2) and noteomit
General interim orders—taken to be special interim orders if related charges laid
Section 26 (2), new noteinsert
NoteThe application for the final order must not be decided until all related charges are finalised (see s 31 (1)).
Section 26 (3) and note
substitute
(3)Unless section 31 (2) (Special interim orders—application not to be decided until related charges finalised) applies, the return date for a hearing to decide the application for the final order must be changed after all related charges are finalised to a day as soon as practicable after the day all related charges are finalised.
NoteUnder s 31 (2), an application for a final order may be finalised by the court before all related charges are finalised by consent or if a party is not present at a time when the application for the final order is returned before the Magistrates Court.
Special interim orders—application not to be decided until related charges finalised
Section 31 (2) (a)substitute
(a)under section 53 (Applicant not present at return of application); or
(aa)under section 54 (Respondent not present at return of application); or
Special interim orders—final application decided
Section 32 (1), notesubstitute
Note The court must not decide the application for the final order, unless by consent or because a party is not present at a time when the application is returned before the court, until all related charges are finalised (see s 31).
Section 32 (5)
omit
for the application
substitute
for the hearing of the application for the final order
New section 33A
in division 3.4, insert
33AConsent to interim order becoming final order
(1)This section applies if a court makes an interim order in the absence of a respondent.
(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.
(4)In this section:
endorsement copy, of an interim order, means the copy of the interim order marked as the endorsement copy under section 70C (1).
Final orders—length
Section 35 (1), noteafter
family violence
insert
by the respondent
Divisions 4.1 and 4.2
substitute
Division 4.1 What Magistrates Court must do after receiving application for protection order
Meaning of timing notice
In this Act:
timing notice, for a preliminary conference, means a written notice stating—
(a)the return date, time and place of the conference; and
(b)that if a party to the application does not appear at the conference, the court may decide the application in the party’s absence.
Interim order not sought
If the Magistrates Court receives an application for a protection order and an interim order is not sought, the registrar must do the following:
(a)set a return date for a preliminary conference which is as soon as practicable after the day the application is received;
(b)as soon as practicable serve on the respondent—
(i)a copy of the application; and
(ii)a timing notice for the conference;
(c)as soon as practicable give the applicant a timing notice.
Note The application for the protection order and timing notice must be served personally on the respondent (see s 70A).
Interim order sought
(1)If the Magistrates Court receives an application for a protection order and an interim order is sought, the court must do the following:
(a)set a return date for a hearing for the interim order which is not later than 2 days after the day the application is received;
(b)after the hearing for the interim order—
(i)set a return date for a preliminary conference which is as soon as practicable after the hearing; and
(ii)as soon as practicable serve on the respondent—
(A)a copy of the application; and
(B)a copy of the interim order; and
(C)a timing notice for the conference; and
(iii)as soon as practicable give the applicant a timing notice.
Note The application for the protection order and timing notice must be served personally on the respondent (see s 70A).
(2)Subsection (1) (b) continues to apply even if the order is taken to be a special interim order under section 26 (General interim orders—taken to be special interim orders if related charges laid) before a preliminary conference is held.
Service of application etc on others
(1)This section applies to a document required to be served under section 46 or section 47.
(2)The registrar—
(a)must also give a copy of the document to the following people:
(i)if the applicant or respondent is a child—the child’s parent or guardian;
(ii)if the applicant or respondent has a disability guardian—the guardian; and
(b)may also give a copy of the document to anyone else the registrar considers appropriate.
NoteSection 70F contains provisions about giving a document to a child or the child’s parent or guardian.
(3)The failure of the registrar to comply with subsection (2) (a) does not affect the validity of any protection order or other order under this Act.
Division 4.2 Preliminary conferences
Preliminary conferences—generally
(1)The objects of a preliminary conference in relation to an application for a protection order are to—
(a)find out whether the proceeding for the order may be settled by consent before it is heard by the Magistrates Court; and
(b)ensure the application is ready to be heard as soon as practicable.
Note 1Before making a consent order, the court must explain certain things about the order (see s 66 and s 67).
Note 2Words spoken or anything done at the preliminary conference that is related to a question to be decided by the court in the proceeding for the protection order is generally inadmissible as evidence in the proceeding (see s 62).
(2)The failure of the registrar to hold a preliminary conference in relation to an application for a protection order does not affect the validity of the protection order.
Adjournment of preliminary conference for non-service
The registrar may adjourn a preliminary conference if—
(a)the registrar has set a return date for the preliminary conference; and
(b)the respondent has not been served in accordance with section 46 or section 47; and
(c)the registrar is satisfied the respondent may be served in accordance with section 46 or section 47 if further time for service were allowed.
Note 1The court may direct that service be effected in another way if personal service is not reasonably practicable (see s 70A (2)).
Note 2The registrar may also extend a general interim order (see s 28).
If no consent order at preliminary conference
If a preliminary conference in relation to an application for a protection order is held and a consent order is not made, the registrar must—
(a)set a return date for a further preliminary conference which is as soon as practicable after the day of the first conference; or
(b)set a return date for a hearing to decide the application for the final order; or
(c)if a special interim order has been made—adjourn the proceeding until all related charges are finalised.
Division 4.2A Non-attendance by party
Meaning of returned before the court—div 4.2A
For this division, a time when an application for a protection order is returned before the Magistrates Court means—
(a)a return date set for a preliminary conference; or
(b)a return date set for a hearing of the application for a final order.
Applicant not present at return of application
If the applicant is not present, personally or by a representative, at a time when an application for a protection order is returned before the Magistrates Court, the court must—
(a)dismiss the application; or
(b)adjourn the proceeding.
Note An interim order ends if the application for a final order on which the interim order was made is discontinued or dismissed (see s 25).
Respondent not present at return of application
(1)This section applies to an application for a protection order if the respondent—
(a)has been served with a copy of the application and timing notice under section 46 or section 47; and
(b)is not present, personally or by a representative, at a time when the application is returned before the Magistrates Court.
(2)The Magistrates Court must—
(a)decide the application in the respondent’s absence; or
(b)if the court considers it appropriate—
(i)issue a warrant for the respondent to be arrested and brought before the court; and
(ii)adjourn the proceeding until the respondent is brought before the court.
(3)This section does not prevent the Magistrates Court from making an interim order in the proceeding.
54ANeither party present at return of application
(1)If neither party to an application for a protection order is present, personally or by a representative, at a time when the application is returned before the court, the Magistrates Court may order that the proceeding be dismissed.
(2)If the Magistrates Court orders that the proceeding be dismissed, the court must not make an order about costs.
Sections 55, 56 and 57
omit
Public hearing not required
Section 59 (a), (b) and (c)substitute
(a)it is a hearing for an interim order; or
(b)a party is not present at a time when the application is returned before the court.
NoteDivision 4.2A provides for what happens if a party is not present when an application for a final order is returned before the court.
New section 59 (2)
insert
(2)In this section:
returned, in relation to an application for a protection order—see section 52.
New sections 60A to 60D
insert
60ANotice of grounds of defence
(1)A respondent in a proceeding for an application for a protection order may file a notice of grounds of defence at any time before the end of the proceeding.
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(2)The registrar must serve the notice of grounds of defence on—
(a)the applicant; and
(b)anyone else the registrar is satisfied has a relevant interest in the proceeding.
Example
a parent or guardian of a child who is an applicant 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).
(3)The respondent does not waive any objection the respondent may have on the grounds of lack of jurisdiction in the court to decide the proceeding only because the respondent files a notice of grounds of defence.
60BApplicant may rely on additional information in hearing
An applicant for a protection order may in a hearing of an application for a protection order—
(a)rely on information other than information stated in the application; and
(b)present additional information to support the application.
60CIf child and child’s parent are affected people
If a child and the child’s parent are an affected person in relation to the same or similar family violence by a respondent in a proceeding—
(a)if an application for a protection order by the child is included in an application for a protection order by the child’s parent under section 16A—the court may hear the application of the child and the child’s parent separately; or
(b)if the child is not a party to the proceeding—the court may join the child in the proceeding.
60DChildren as witnesses
(1)A child, other than a child who is party to a proceeding, may be called as a witness in the proceeding only with the court’s leave.
(2)In deciding whether to give leave, the court must consider—
(a)the need to protect the child from unnecessary exposure to the court system; and
(b)the harm that could be done to the child and the child’s relationship with a family member if the child gives evidence.
(3)If the court gives leave, the court may restrict cross-examination of the child if satisfied that it is in the best interests of the child to do so.
Discontinuance
Section 61 (1), notesubstitute
Note 1The court may make an order for costs against an applicant if satisfied the application was vexatious, frivolous or in bad faith. However, an application is not vexatious, frivolous or in bad faith only because it is made then discontinued (see s 73).
Note 2If a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
New section 62A
insert
62AGiving evidence by affidavit for interim order
(1)This section applies if a police officer applies for a protection order on behalf of an affected person.
(2)In a proceeding for an interim order, evidence may be given by an affidavit—
(a)made by the affected person or a police officer; and
(b)witnessed by a police officer of, or above, the rank of sergeant.
Service of protection orders
Section 70omit
New division 4.4A
insert
Division 4.4A Service of documents
70APersonal service of application on respondent
(1)An application for a protection order and timing notice must be served personally on the respondent.
(2)However, if personal service is not reasonably practicable, the court may order that the application be served in a way, stated in the order, that the court considers is likely to bring the application and timing notice to the attention of the respondent.
70BDismissal of application for non-service
The Magistrates Court may dismiss an application for a protection order if satisfied that—
(a)the application cannot be served on the respondent in accordance with section 70A; and
(b)no alternative way of service would be effective to serve the application on the respondent; and
(c)the respondent has not intentionally avoided service.
70CService of protection orders
(1)If a court makes a protection order, the registrar must—
(a)if the order is an interim order—serve 2 copies of the order (1 marked as the endorsement copy) on the respondent as soon as practicable; and
(b)if the order is not an interim order—serve a copy of the order on the respondent; and
(c)give a copy of the order to—
(i)each other party to the proceeding; and
(ii)the chief police officer; and
(iii)the registrar of firearms; and
(iv)if a party to the proceeding is a child—the child’s parent or guardian; and
(v)if a party to the proceeding has a disability guardian—the guardian; and
(vi)anyone else the court is satisfied has a relevant interest in the proceeding who does not already have a copy of the order.
Note 1Section 108 provides for service of an after-hours order.
Note 2Section 70F contains provisions about giving a document to a child or the child’s parent or guardian.
(2)If the registrar serves 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 87 (Special interim orders—application for review); and
(b)if a preliminary conference in relation to the application for the protection order is held and a consent order is not made—the court will set a return date for a hearing to decide the application for the final order after all related charges are finalised.
(3)Service under subsection (1) (a) must be personal service unless—
(a)the respondent is present when the protection order is made; or
(b)a court makes an order under section 70A (2).
(4)The failure of the registrar to comply with subsection (1) (c) (iv) or (v) does not affect the validity of the protection order.
70DSelf-represented parties
(1)This section applies if a party to an application for a protection order is not represented by a lawyer.
(2)Unless the court requires a document to be served by a police officer, the registrar must serve any document required to be served by the self-represented party.
(3)Any address for service given to the court must not be given to the other party without the self-represented party’s consent.
70EService of documents by police
A court may direct that a document required to be served on someone be served by a police officer.
70FGiving documents to child or child’s parent or guardian
(1)If a document is required to be given to a child, it must not be given at or near the child’s school unless there is no other place where the document may be reasonably given to the child.
(2)If a document is required to be given to a child’s parent or guardian—
(a)the document need not be given if the parent or guardian is also a party to the application or proceeding; and
(b)the court may order that the document is not required to be given if satisfied that—
(i)giving the document is not reasonably practicable; or
(ii)there are circumstances that justify the document not being given.
Examples—subpar (ii)
1the child is estranged from the child’s parent
2there would be an unacceptable risk to the child’s safety if the parent or guardian was given the document
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).
(3)In this section:
guardian includes a disability guardian.
New section 71A
insert
71ARequest for further particulars
A party may only seek further particulars of an applicant for a protection order with the court’s leave.
Directions about procedure
Section 72omit
Costs
Section 73 (2), noteomit
s 57
substitute
s 54A
Litigation guardian—appointment
Section 78 (1) (a)omit
individual
substitute
adult
New section 82A
insert
82APreliminary conferences
If the Magistrates Court receives an application under section 82, the registrar must do the following:
(a)set a return date for a preliminary conference which is as soon as practicable after the day the application is received;
(b)as soon as practicable personally serve on the other party—
(i)a copy of the application; and
(ii)a timing notice for the conference;
(c)as soon as practicable give the applicant a timing notice.
Amendment of protection orders
Section 83 (1) (a)omit
Section 83 (1), example and note
omit
Section 83 (5) and note
substitute
(5)If the parties consent to the application to amend the protection order, the Magistrates Court must amend the order regardless of whether or not—
(a)the grounds mentioned in subsection (1) (b), (c) and (d) have been made out; or
(b)the court has considered those grounds.
General interim orders made by consent—extension
Section 85 (1)omit
, of up to 8 weeks
Section 85 (2)
omit
Final orders—extension
Section 86 (3), (4) and (5) and noteomit
Special interim orders—application for review
Section 87 (d)omit
Special interim orders—review
Section 88 (3)after
special interim order
insert
and the protected person is not present in court when the order is revoked
Section 89 heading
substitute
Final orders—application for review
Section 89 (1)
omit
other than a consent order
Section 89 (1), note
after
Section 91
insert
also
New section 89 (3A)
insert
(3A)The Magistrates Court may grant leave under subsection (2) (c) only if satisfied there has been a change in the circumstances of a party to the order or it is in the interests of justice to do so.
Section 90 heading
substitute
Final orders—review
Section 90 (3)
after
original order
insert
and the protected person is not present in court when the order is revoked
Consent orders—review
Section 91 (1)after
may
insert
also
Section 91 (1)
omit
only
New section 91A
insert
91APreliminary conferences
If the Magistrates Court receives an application under section 87, section 89 or section 91, the registrar must do the following:
(a)set a return date for a preliminary conference which is as soon as practicable after the day the application is received;
(b)as soon as practicable personally serve on the other party—
(i)a copy of the application; and
(ii)a timing notice for the conference;
(c)as soon as practicable give the applicant a timing notice.
Giving notice of appeal
Section 94omit
Court-initiated interim orders
Section 112 (1), noteomit
s 70
substitute
s 70C
Interim court-initiated protection order taken to be special interim order
Section 113 (a)omit
in accordance with section 45
substitute
on the respondent
Section 113 (e) and (f)
substitute
(e)section 47 (1) (b) (Interim order sought) applies to the order; and
(f)section 48 (Service of application etc on others) applies to the order; and
(g)division 4.2 (Preliminary conferences) applies to the order; and
(h)division 4.2A (Non-attendance by party) applies to the order.
Definitions—pt 9
Section 115, definition of registered foreign ordersubstitute
registered foreign order means—
(a)a foreign order of another jurisdiction prescribed by regulation; or
(b)a foreign order registered under section 134B.
Meaning of properly notified—pt 9
Section 117omit
division 4.1 (Service of applications)
substitute
division 4.4A (Service of documents)
Making new orders
Section 123 (2)omit
make
substitute
apply for
New division 9.3A
insert
Division 9.3A Registration of foreign orders
134AApplications for registration of foreign orders
(1)A person may apply to the registrar for registration of a foreign order.
Note If a form is approved under the Court Procedures Act 2004, s 8 for an application, the form must be used.
(2)The application must be accompanied by the foreign order or a certified copy of the order.
134BRegistration of foreign orders
(1)On receiving an application under section 134A, the registrar must register the foreign order.
(2)If the registrar registers a foreign order, the registrar must—
(a)give the chief police officer a copy of—
(i)the application for registration; and
(ii)the foreign order; and
(b)tell the court that made the foreign order, in writing, that the order has been registered.
New sections 198 and 199
in part 20, insert
Meaning of repealed Act—pt 20
In this part:
repealed Act means the Domestic Violence and Protection Orders Act 2008.
Applications and orders under repealed Act
(1)This section applies if—
(a)an application for a domestic violence order is made under the repealed Act; or
(b)a domestic violence order is made under the repealed Act.
(2)The application or domestic violence order is taken to have been made under this Act.
(3)A proceeding for or in relation to an application for a domestic violence order under the repealed Act is taken to be a proceeding under this Act.
NoteAny procedural requirement under this Act, the Court Procedures Act 2004 or any other territory law will apply to a proceeding under the repealed Act.
(4)To avoid doubt, if an application or an order is properly made under the repealed Act, or taken to have been properly made under the repealed Act, section 27 or section 28, it is taken to have been properly made under this Act.
New section 199 (2A)
insert
(2A)However, part 9 (National Recognition of FVOs) does not apply to a domestic violence order made under the repealed Act.
Existing registered orders under repealed Act
Section 200 (4)omit
New section 200A
insert
200APreservation of repealed Act, pt 12
The repealed Act, part 12 (Reciprocal arrangements) as in force immediately before its repeal continues to apply in relation to an order that corresponds to a domestic violence order until the commencement of part 9 (National recognition of FVOs).
Dictionary, note 2
insert
· adult
Dictionary, note 2
omit
· individual
Dictionary, new definition of returned
insert
returned, in relation to an application for a protection order, for division 4.2A (Non-attendance by party)—see section 52.
Dictionary, definition of timing notice
substitute
timing notice, for a preliminary conference—see section 45.
Part 4Personal Violence Act 2016
Principle about procedures
Section 9omit
under
substitute
for
New section 10A
in division 2.2, insert
10ARules of evidence
To remove any doubt, the Magistrates Court need not comply with the rules of evidence applying in the ACT in a proceeding under this Act.
NoteThe Magistrates Court may inform itself in any way it considers appropriate in a proceeding for a protection order (see s 59).
Matters to be considered—protection orders
Section 11 (1) (f)omit
New section 11 (2A)
insert
(2A)A failure of the court to comply with subsection (1) in relation to a protection order does not affect the validity of the order.
New sections 13A and 13B
insert
13AChild may apply for protection order in same application as parent
(1)This provision applies if a child and the child’s parent are each an affected person in relation to the same or similar personal violence by a respondent.
(2)An application for a protection order by the child may be included in an application for a protection order by the child’s parent.
NoteThe court may hear the application of the child and the child’s parent separately (see s 55C).
13BApplications by police officers
(1)This section applies if a police officer makes an application for a personal protection order for an affected person.
(2)The police officer must tell the Magistrates Court whether the affected person consents to the application.
Application forms that require affected person’s address
Section 14 (2), new noteinsert
NoteIf a party to an application for a protection order is not represented by a lawyer, any address for service given to the court must not be given to the other party without the self-represented party’s consent (see s 64D).
Interim orders—only on application for final order
Section 17 (2)substitute
(2)The Magistrates Court may make an interim order at any time before the application for the final order is decided.
Interim orders—length
Section 20 (2) and noteomit
New section 24A
in division 3.4, insert
24AConsent to interim order becoming final order
(1)This section applies if a court makes an interim order in the absence of a respondent.
(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.
(4)In this section:
endorsement copy, of an interim order, means the copy of the interim order marked as the endorsement copy under section 64C (1).
Final orders—length
Section 27 (1), noteafter
personal violence
insert
by the respondent
Divisions 4.1 and 4.2
substitute
Division 4.1 What Magistrates Court must do after receiving application for protection order
Meaning of timing notice
In this Act:
timing notice, for a preliminary conference, means a written notice stating—
(a)the return date, time and place of the conference; and
(b)that if a party to the application does not appear at the conference, the court may decide the application in the party’s absence.
Interim order not sought
If the Magistrates Court receives an application for a protection order and an interim order is not sought, the registrar must do the following:
(a)set a return date for a preliminary conference which is as soon as practicable after the day the application is received;
(b)as soon as practicable serve on the respondent—
(i)a copy of the application; and
(ii)a timing notice for the conference;
(c)as soon as practicable give the applicant a timing notice.
Note The application for the protection order and timing notice must be served personally on the respondent (see s 64A).
Interim order sought
If the Magistrates Court receives an application for a protection order and an interim order is sought, the court must do the following:
(a)set a return date for a hearing for the interim order which is not later than 2 days after the day the application is received;
(b)after the hearing for the interim order—
(i)set a return date for a preliminary conference which is as soon as practicable after the hearing; and
(ii)as soon as practicable serve on the respondent—
(A)a copy of the application; and
(B)a copy of the interim order; and
(C)a timing notice for the conference; and
(iii)as soon as practicable give the applicant a timing notice.
Note The application for the protection order and timing notice must be served personally on the respondent (see s 64A).
Service of application etc on others
(1)This section applies to a document required to be served under section 40 or section 41.
(2)The registrar—
(a)must also give a copy of the document to the following people:
(i)if the applicant or respondent is a child—the child’s parent or guardian;
(ii)if the applicant or respondent has a disability guardian—the guardian; and
(b)may also give a copy of the document to anyone else the registrar considers appropriate.
NoteSection 64F contains provisions about giving a document to a child or the child’s parent or guardian.
(3)The failure of the registrar to comply with subsection (2) (a) does not affect the validity of any protection order or other order under this Act.
Division 4.2 Preliminary conferences
Preliminary conferences—generally
(1)The objects of a preliminary conference in relation to an application for a protection order are to—
(a)find out whether the proceeding for the order may be settled by consent before it is heard by the Magistrates Court; and
(b)ensure the application is ready to be heard as soon as practicable.
Note 1Before making a consent order, the court must explain certain things about the order (see s 60 and s 61).
Note 2Words spoken or anything done at the preliminary conference that is related to a question to be decided by the court in the proceeding for the protection order is generally inadmissible as evidence in the proceeding (see s 57).
(2)The failure of the registrar to hold a preliminary conference in relation to an application for a protection order does not affect the validity of the protection order.
Adjournment of preliminary conference for non-service
The registrar may adjourn a preliminary conference if—
(a)the registrar has set a return date for the preliminary conference; and
(b)the respondent has not been served in accordance with section 40 or section 41; and
(c)the registrar is satisfied the respondent may be served in accordance with section 40 or section 41 if further time for service were allowed.
Note 1The court may direct that service be effected in another way if personal service is not reasonably practicable (see s 64A (2)).
Note 2The registrar may also extend an interim order (see s 23).
If no consent order at preliminary conference
If a preliminary conference in relation to an application for a protection order is held and a consent order is not made, the registrar must—
(a)set a return date for a further preliminary conference which is as soon as practicable after the day of the first conference; or
(b)set a return date for a hearing to decide the application for the final order.
Referrals to mediation
(1)This section applies if, at any time during the preliminary conference for an application for a protection order, the registrar is satisfied that the application is likely to be more effectively resolved by mediation than by a hearing.
(2)The registrar must—
(a)recommend to the parties to the application that they seek mediation; and
(b)give the parties information about mediation; and
(c)adjourn the preliminary conference until a stated date to allow for mediation to happen.
NoteThe Court Procedures Act 2004, pt 5A (Mediation) applies to a mediation in relation to a proceeding in a court.
Division 4.2A Non-attendance by party
Meaning of returned before the court—div 4.2A
For this division, a time when an application for a protection order is returned before the Magistrates Court means—
(a)a return date set for a preliminary conference; or
(b)a return date set for a hearing of the application for a final order.
Applicant not present at return of application
If the applicant is not present, personally or by a representative, at a time when an application for a protection order is returned before the Magistrates Court, the court must—
(a)dismiss the application; or
(b)adjourn the proceeding.
Note An interim order ends if the application for a final order on which the interim order was made is discontinued or dismissed (see s 21).
Respondent not present at return of application
(1)This section applies to an application for a protection order if the respondent—
(a)has been served with a copy of the application and timing notice under section 40 or section 41; and
(b)is not present, personally or by a representative, at a time when the application is returned before the Magistrates Court.
(2)The Magistrates Court must—
(a)decide the application in the respondent’s absence; or
(b)if the court considers it appropriate—
(i)issue a warrant for the respondent to be arrested and brought before the court; and
(ii)adjourn the proceeding until the respondent is brought before the court.
(3)This section does not prevent the Magistrates Court from making an interim order in the proceeding.
49ANeither party present at return of application
(1)If neither party to an application for a protection order is present, personally or by a representative, at a time when the application is returned before the court, the Magistrates Court may order that the proceeding be dismissed.
(2)If the Magistrates Court orders that the proceeding be dismissed, the court must not make an order about costs.
Sections 50, 51 and 52
omit
Public hearing not required
Section 54 (a), (b) and (c)substitute
(a)it is a hearing for an interim order; or
(b)a party is not present at a time when the application is returned before the court.
NoteDivision 4.2A provides for what happens if a party is not present when an application for a final order is returned before the court.
New section 54 (2)
insert
(2)In this section:
returned, in relation to an application for a protection order—see section 47.
New sections 55A to 55D
insert
55ANotice of grounds of defence
(1)A respondent in a proceeding for an application for a protection order may file a notice of grounds of defence at any time before the end of the proceeding.
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(2)The registrar must serve the notice of grounds of defence on—
(a)the applicant; and
(b)anyone else the registrar is satisfied has a relevant interest in the proceeding.
Example
a parent or guardian of a child who is an applicant 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).
(3)The respondent does not waive any objection the respondent may have on the grounds of lack of jurisdiction in the court to decide the proceeding only because the respondent files a notice of grounds of defence.
55BApplicant may rely on additional information in hearing
An applicant for a protection order may in a hearing of an application for a protection order—
(a)rely on information other than information stated in the application; and
(b)present additional information to support the application.
55CIf child and child’s parent are affected people
If a child and the child’s parent are an affected person in relation to the same or similar personal violence by a respondent in a proceeding—
(a)if an application for a protection order by the child is included in an application for a protection order by the child’s parent under section 13A—the court may hear the application of the child and the child’s parent separately; or
(b)if the child is not a party to the proceeding—the court may join the child in the proceeding.
55DChildren as witnesses
(1)A child, other than a child who is party to a proceeding, may be called as a witness in the proceeding only with the court’s leave.
(2)In deciding whether to give leave, the court must consider—
(a)the need to protect the child from unnecessary exposure to the court system; and
(b)the harm that could be done to the child if the child gives evidence.
(3)If the court gives leave, the court may restrict cross-examination of the child if satisfied that it is in the best interests of the child to do so.
Discontinuance
Section 56 (1), notesubstitute
Note 1The court may make an order for costs against an applicant if satisfied the application was vexatious, frivolous or in bad faith. However, an application is not vexatious, frivolous or in bad faith only because it is made then discontinued (see s 67).
Note 2If a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
New section 57A
insert
57AGiving evidence by affidavit for interim order
(1)This section applies if a police officer applies for a personal protection order on behalf of an affected person.
(2)In a proceeding for an interim order, evidence may be given by an affidavit—
(a)made by the affected person or a police officer; and
(b)witnessed by a police officer of, or above, the rank of sergeant.
Service of protection orders
Section 64omit
New division 4.4A
insert
Division 4.4A Service of documents
64APersonal service of application on respondent
(1)An application for a protection order and timing notice must be served personally on the respondent.
(2)However, if personal service is not reasonably practicable, the court may order that the application be served in a way, stated in the order, that the court considers is likely to bring the application and timing notice to the attention of the respondent.
64BDismissal of application for non-service
The Magistrates Court may dismiss an application for a protection order if satisfied that—
(a)the application cannot be served on the respondent in accordance with section 64A; and
(b)no alternative way of service would be effective to serve the application on the respondent; and
(c)the respondent has not intentionally avoided service.
64CService of protection orders
(1)If the Magistrates Court makes a protection order, the registrar must—
(a)if the order is an interim order—serve 2 copies of the order (1 marked as the endorsement copy) on the respondent as soon as practicable; and
(b)if the order is not an interim order—serve a copy of the order on the respondent; and
(c)give a copy of the order to—
(i)each other party to the proceeding; and
(ii)the chief police officer; and
(iii)the registrar of firearms; and
(iv)if a party to the proceeding is a child—the child’s parent or guardian; and
(v)if a party to the proceeding has a disability guardian—the guardian; and
(vi)anyone else the court is satisfied has a relevant interest in the proceeding who does not already have a copy of the order.
Note Section 64F contains provisions about giving a document to a child or the child’s parent or guardian.
(2)Service under subsection (1) (a) must be personal service unless—
(a)the respondent is present when the protection order is made; or
(b)a court makes an order under section 64A (2).
(3)The failure of the registrar to comply with subsection (1) (c) (iv) or (v) does not affect the validity of the protection order.
64DSelf-represented parties
(1)This section applies if a party to an application for a protection order is not represented by a lawyer.
(2)Unless the Magistrates Court requires a document to be served by a police officer, the registrar must serve any document required to be served by the self-represented party.
(3)Any address for service given to the Magistrates Court must not be given to the other party without the self-represented party’s consent.
64EService of documents by police
The Magistrates Court may direct that a document required to be served on someone be served by a police officer.
64FGiving documents to child or child’s parent or guardian
(1)If a document is required to be given to a child, it must not be given at or near the child’s school unless there is no other place where the document may be reasonably given to the child.
(2)If a document is required to be given to a child’s parent or guardian—
(a)the document need not be given if the parent or guardian is also a party to the application or proceeding; and
(b)the court may order that the document is not required to be given if satisfied that—
(i)giving the document is not reasonably practicable; or
(ii)there are circumstances that justify the document not being given.
Examples—subpar (ii)
1the child is estranged from the child’s parent
2there would be an unacceptable risk to the child’s safety if the parent or guardian was given the document
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).
(3)In this section:
guardian includes a disability guardian.
New section 65A
insert
65ARequest for further particulars
A party may only seek further particulars of an applicant for a protection order with the Magistrate Court’s leave.
Directions about procedure
Section 66omit
Costs
Section 67 (2), noteomit
s 52
substitute
s 49A
Litigation guardian—appointment
Section 72 (1) (a)omit
individual
substitute
adult
New section 76A
insert
76APreliminary conferences
If the Magistrates Court receives an application under section 76, the registrar must do the following:
(a)set a return date for a preliminary conference which is as soon as practicable after the day the application is received;
(b)as soon as practicable personally serve on the other party—
(i)a copy of the application; and
(ii)a timing notice for the conference;
(c)as soon as practicable give the applicant a timing notice.
Amendment of protection orders
Section 77 (1) (a)omit
Section 77 (1), example and note
omit
Section 77 (5) and note
substitute
(5)If the parties consent to the application to amend the protection order, the Magistrates Court must amend the order regardless of whether or not—
(a)the grounds mentioned in subsection (1) (b), (c) and (d) have been made out; or
(b)the court has considered those grounds.
Interim orders made by consent—extension
Section 79 (1)omit
, of up to 8 weeks
Section 79 (2)
omit
Final orders—extension
Section 80 (3), (4) and (5) and noteomit
Section 81 heading
substitute
Final orders—application for review
Section 81 (1)
omit
other than a consent order
Section 81 (1), note
after
Section 83
insert
also
New section 81 (3A)
insert
(3A)The Magistrates Court may grant leave under subsection (2) (c) only if satisfied there has been a change in the circumstances of a party to the order or it is in the interests of justice to do so.
Section 82 heading
substitute
Final orders—review
Section 82 (3)
after
original order
insert
and the protected person is not present in court when the order is revoked
Consent orders—review
Section 83 (1)after
may
insert
also
Section 83 (1)
omit
only
New section 83A
insert
83APreliminary conferences
If the Magistrates Court receives an application under section 81 the registrar must do the following:
(a)set a return date for a preliminary conference which is as soon as practicable after the day the application is received;
(b)as soon as practicable personally serve on the other party—
(i)a copy of the application; and
(ii)a timing notice for the conference;
(c)as soon as practicable give the applicant a timing notice.
Giving notice of appeal
Section 86omit
New sections 198 and 199
in part 20, insert
Meaning of repealed Act—pt 20
In this part:
repealed Act means the Domestic Violence and Protection Orders Act 2008.
Applications and orders under repealed Act
(1)This section applies if—
(a)an application for a personal protection order is made under the repealed Act; or
(b)a personal protection order is made under the repealed Act.
(2)The application or personal protection order is taken to have been made under this Act.
(3)A proceeding for or in relation to an application for a personal protection order under the repealed Act is taken to be a proceeding under this Act.
NoteAny procedural requirement under this Act, the Court Procedures Act 2004 or any other territory law will apply to a proceeding under the repealed Act.
(4)To avoid doubt, if an application or an order is properly made under the repealed Act, or taken to have been properly made under the repealed Act, section 27 or section 28, it is taken to have been properly made under this Act.
Existing registered orders under repealed Act
Section 200 (1) (a)omit
Domestic Violence and Protection Orders Act 2008
substitute
repealed Act
Dictionary, note 2
insert
· adult
Dictionary, note 2
omit
· individual
Dictionary, new definition of returned
insert
returned, in relation to an application for a protection order, for division 4.2A (Non-attendance by party)—see section 47.
Dictionary, definition of timing notice
substitute
timing notice, for a preliminary conference—see section 39.
Endnotes
Presentation speech
Presentation speech made in the Legislative Assembly on 16 February 2017.
Notification
Notified under the Legislation Act on 6 April 2017.
Republications of amended laws
For the latest republication of amended laws, see certify that the above is a true copy of the Family and Personal Violence Legislation Amendment Bill 2017, which was passed by the Legislative Assembly on 30 March 2017.
Clerk of the Legislative Assembly
© Australian Capital Territory 2017
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