Domestic And Family Violence Act Flashcards
What conduct Is deemed to be domestic violence in accordance with the legislation
Domestic violence is any of the following conduct committed by a person against someone with whom the person is in a domestic relationship:
(a) conduct causing harm
(b) damaging property, including the injury or death of an animal;
(c) intimidation;
(d) stalking;
(e) economic abuse;
(f) attempting or threatening to commit conduct mentioned in paragraphs (a) to (e).
Define domestic relationship
A person is in a domestic relationship with another person if the person:
(a) is or has been in a family relationship with the other person; or
(b) has or had the custody or guardianship of, or right of access to, the other person; or
(c) is or has been subject to the custody or guardianship of the other person or the other person has or has had a right of access to the person; or
(d) ordinarily or regularly lives, or has lived, with:
(i) the other person; or
(ii) someone else who is in a family relationship with the other person; or
(e) is or has been in a family relationship with a child of the other person; or
(f) is or has been in an intimate personal relationship with the other person; or
(g) is or has been in a carers relationship with the other person.
Define family relationship
(1) A person is in a family relationship with another person if the person:
(a) is the spouse or de facto partner of the other person; or
(b) is otherwise a relative of the other person.
Examples of relatives for paragraph (b)
Stepchild, parent, step-parent, grandparent, aunt, nephew, cousin, half-brother, mother-in-law or aunt-in-law.
(2) A relative of a person includes someone who, according to Aboriginal tradition or contemporary social practice, is a relative of the person.
What is an Intimate personal relationship
(1) An intimate personal relationship exists between 2 persons if the persons are engaged to be married to each other, including a betrothal under cultural or religious tradition.
(2) In addition, an intimate personal relationship exists between 2 persons, whether or not the relationship involves a sexual relationship, if the persons date each other.
(3) In deciding whether an intimate personal relationship exists under subsection (2), the following may be taken into account:
(a) the circumstances of the relationship, including, for example, the level of trust and commitment;
(b) the length of time the relationship has existed;
(c) the frequency of contact between the persons;
(d) the level of intimacy between the persons.
(4) An intimate personal relationship may exist whether the 2 persons are the same or the opposite sex.
Define Defendant in accordance with the act
Defendant
(1) The defendant is the person against whom a DVO:
(a) is sought; or
(b) is in force.
(2) Only 1 person may be named as the defendant in:
(a) an application for a DVO; or
(b) a DVO.
(3) The defendant must be at least 15 years old.
What are the matters to be considered in making a DVO?
19 Matters to be considered in making DVO
(1) In deciding whether to make a DVO, the issuing authority must consider the safety and protection of the protected person to be of paramount importance.
(2) In addition, the issuing authority must consider the following:
(a) any family law orders in force in relation to the defendant, or any pending applications for family law orders in relation to the defendant, of which the issuing authority has been informed;
(b) the accommodation needs of the protected person;
(c) the defendant’s criminal record as defined in the Criminal Records (Spent Convictions) Act;
(d) the defendant’s previous conduct whether in relation to the protected person or someone else;
(e) other matters the authority considers relevant.
What are the considerations you need to make before issuing a Premises Access Order
22 Premises access order
(1) A DVO may include an order (a premises access order):
(a) requiring the defendant to vacate stated premises where the defendant and protected person live together or previously lived together; or
(b) restraining the defendant from entering such premises except on stated conditions.
(2) Before making a premises access order, the issuing authority must consider the effect of making the order on the accommodation of the persons affected by it.
(3) The order applies regardless of whether the defendant has a legal or equitable interest in the premises.
Who may apply for a DVO?
(1) Any of the following persons may apply for a domestic violence order under this Part (a CSJ DVO):
(a) an adult or young person in a domestic relationship with the defendant;
(b) an adult acting for a person (whether an adult or child) in a domestic relationship with the defendant;
(c) a police officer.
(2) An application may be made by, or for, only 1 person even though more than 1 protected person may be named in it.
(3) A young person may apply for a DVO only with the leave of the Court.
(4) The Court may grant leave only if satisfied:
(a) the young person understands:
(i) the nature, purpose and legal effect of the application; and
(ii) the legal effect of the making of a DVO; and
(b) the young person has the capacity to make the application.
29 When application must be made for child
(1) A police officer or child protection officer must apply for a CSJ DVO for the protection of a child if the officer reasonably believes:
(a) domestic violence has been committed or is being committed, or is likely to be committed; and
(b) the child’s wellbeing has or is likely to be adversely affected by the violence.
(2) However, an application need not be made if the officer reasonably believes:
(a) a DVO is already in force against the defendant for the child’s protection; or
(b) a police DVO is to be made against the defendant for the child’s protection; or
(c) an application for a CSJ DVO is to be made for the child’s protection; or
(d) a DVO is not necessary for the child’s protection because an order is in force for the child’s protection under another Act.
41 When authorised police officer may make DVO
(1) An authorised police officer may make a domestic violence order under this Part (a police DVO) if satisfied:
(a) it is necessary to ensure a person’s safety:
(i) because of urgent circumstances; or
(ii) because it is not otherwise practicable in the circumstances to obtain a CSJ DVO; and
(b) a CSJ DVO might reasonably have been made had it been practicable to apply for one.
(2) The police DVO may be made even if the defendant has not been given an opportunity to answer any allegation made in relation to the making of the DVO.
43 What police officer must do after DVO is made
(1) As soon as practicable after the police DVO is made, a police officer must:
(a) give a copy of it to the parties to the DVO; and
(b) send the original of it to the Court.
(2) If giving a copy of the DVO to the defendant personally, the officer must explain to the defendant:
(a) the effect of the DVO, including any restrictions and obligations imposed by the DVO; and
(b) the consequences that may follow if the defendant contravenes the DVO; and
(c) the defendant has a right to apply for a review of the DVO under Part 2.9.
(3) As far as it is reasonably practicable to do so, the explanation must be given in a language or in terms that are likely to be readily understood by the defendant.
(4) A failure to comply with this section for a DVO does not affect its validity.
Obtaining and order varying DVO
65 When application may be made
(1) If, because of urgent circumstances, it is not practicable to obtain an order varying a court DVO under Division 1, a police officer may apply to a magistrate for an order varying the DVO.
(1A) In addition, a police officer may apply to a magistrate for an order varying a police DVO if, because of urgent circumstances, the terms of the DVO should be varied before the hearing of the proceeding for the confirmation of the DVO.
(2) However, the police officer may make the application only if satisfied there has been a substantial change in the relevant circumstances since the DVO was made or last varied.
(3) Without limiting subsection (2), a substantial change in the relevant circumstances may arise if:
(a) there has been a change in circumstances relating to affected children including, for example, their care arrangements; or
(b) the defendant satisfactorily completes a rehabilitation program.
What must you do if a party requests a review of a DVO you have served upon him/her?
73 How application is made
(1) The application may be made by phone, fax or another form of electronic communication.
(2) If a party wants to apply for a review of the DVO:
(a) the party must tell a police officer; and
(b) the police officer must facilitate the application.
(3) To facilitate the application, the police officer must:
(a) contact a magistrate; and
(b) ensure the application complies with applicable rules and practice directions relating to making the application; and
(c) ensure the magistrate is given the information required for the application.
What are the police powers to remove an detain a person fro a DVO
84 Power to remove and detain
(1) This section applies if:
(a) a police officer reasonably believes:
(i) grounds exist for making a DVO against a person; and
(ii) it is necessary to remove the person to prevent an imminent risk of harm to another person or damage to property, including the injury or death of an animal; or
(b) a DVO has been made against a person and a police officer reasonably believes it is necessary to detain the person to give the person a copy of the DVO; or
(c) a DVO has been made against a person and a police officer reasonably believes it is necessary to detain the person until an application for the variation of the DVO can be made and decided under Part 2.8, Division 2.
(2) The police officer may, using reasonable force or assistance, do the following:
(a) enter premises on or in which the officer reasonably believes the person to be;
(b) take the person into custody;
(c) remove the person to the nearest police station or other place where the person can be conveniently detained to facilitate:
(i) if subsection (1)(a) applies – the making of a DVO and, if made, the giving of a copy of the DVO to the defendant; or
(ii) if subsection (1)(b) applies – the giving of a copy of the DVO to the defendant; or
(iii) if subsection (1)(c) applies – the making of an application for a variation of the DVO and, if varied, the giving of a copy of the varied DVO to the defendant.
(3) Subject to subsection (4), the person must not be detained for more than 4 hours after being taken into custody.
(4) The person may be detained for a longer time if a police officer is satisfied it is necessary to do so to enable a police officer to properly give a copy of the DVO to the person because of the person’s apparent intoxication.
(5) However, the person may be detained for more than 6 hours after being taken into custody only if a police officer:
(a) is satisfied the person is still intoxicated; and
(b) informs a senior police officer of the need to continue to detain the person; and
(c) records the following information about the person’s continued detention in the custody log (however described):
(i) the time and way the officer informed the senior police officer;
(ii) the details of the information given to the senior police officer; and
(d) arranges for a health practitioner (the examining health practitioner) to examine the person as soon as practicable.
(6) The senior police officer must ensure the person is released from custody:
(a) into the care of a health practitioner if, on examination, the examining health practitioner is satisfied the person’s condition requires medical treatment; or
(b) on the earlier of the following:
(i) the person ceases to be intoxicated;
(ii) 10 hours after being taken into custody.
You have just served a DVO Ina male which has a premises access order, he states that he has to get some clothes, tools and personal documents from the premises. What do you do
85 Retrieval of defendant’s personal property
(1) This section applies if:
(a) a DVO includes a premises access order; and
(b) personal property of the defendant is located on the premises the subject of the order.
(2) The defendant may, if accompanied by a police officer:
(a) enter the premises at any reasonable time; and
(b) retrieve the property.
(3) The defendant is not in contravention of the DVO merely because of entry of the premises and retrieval of the property under subsection (2).
(4) The police officer may use reasonable force or assistance for the entry of the premises and retrieval of the property.
(5) In this section:
