Family Violence Act 2004 (Tas)

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 1. Short title This Act may be cited as the Family Violence Act 2004 . 2. Commencement The provisions of this Act commence on a day or days to be proclaimed. 3. Objects of Act In the administration of this Act, the safety, psychological wellbeing and interests of people affected by family violence are the paramount considerations. 4. Interpretation 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 ; Director, MPES means the Director, Monetary Penalties Enforcement Services appointed under section 8 of the Monetary Penalties Enforcement Act 2005 ; Director of Corrective Services means the Director of Corrective Services appointed under section 5 of the Corrections Act 1997 ; DPP means the Director of Public Prosecutions; economic abuse means an offence in accordance with section 8 ; emotional abuse or intimidation means an offence in accordance with section 9 ; external family violence order means an order made by a court of 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; (j) making unwelcome contact, directly or indirectly, with the person; 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 means a structured treatment program designed to reduce the likelihood of a person committing family violence; rehabilitation program assessment means an assessment of the suitability of a person to take part in a rehabilitation program; 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; serial family violence declaration, in relation to an offender, means a declaration under section 29A that is in force in relation to that offender; serial family violence perpetrator means an offender in respect of whom a declaration under section 29A is in force; spouse or partner of a person means another person with whom the person is, or has been, in a family relationship. 5. Meaning of "court" (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 . 6. Act to prevail 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 7. Family violence (1) 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 (but not limited to) sexual assault, indecent assault and aggravated assault; (ii) threats, coercion, intimidation or verbal abuse; (iii) abduction; (iv) stalking and bullying within the meaning of section 192 of the Criminal Code ; (v) rape; (vi) wounding or bodily harm, including grievous bodily harm and committing an unlawful act intended to cause bodily harm; (vii) penetrative sexual abuse of a child, a young person or a person with a mental impairment; (viii) any other conduct that causes personal injury; (ix) attempting or threatening to commit conduct referred to in subparagraph (i) , (ii) , (iii) (iv) , (v) , (vi) , (vii) or (viii) ; or (b) any of the following: (i) economic abuse; (ii) emotional abuse or intimidation; (iii) contravening an external family violence order, an interim FVO, an FVO or a PFVO; or (c) 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; or (d) any conduct committed by a person that causes the death or neglect of, or injury to, an animal that, directly or indirectly – (i) intimidates, coerces or controls the person's spouse or partner; or (ii) causes mental harm to, or apprehension or fear in, the person's spouse or partner; or (e) any threats made by a person regarding the potential death or neglect of, or injury to, an animal that, directly or indirectly – (i) intimidates, coerces or controls the person's spouse or partner; or (ii) causes mental harm to, or apprehension or fear in, the person's spouse or partner; or (f) any conduct referred to in paragraph (d) or threats referred to in paragraph (e) by a person that the person knows, or reasonably ought to know, is likely to, directly or indirectly – (i) intimidate, coerce or control the person's spouse or partner; or (ii) cause mental harm to, or apprehension or fear in, the person's spouse or partner. (2) For the purposes of subsection (1)(d) , (e) or (f) , it is irrelevant whether the animal referred to in the relevant paragraph – (a) is owned by a person referred to in the paragraph or another person; or (b) is domesticated or not. 8. Economic abuse A person must not, with intent to unreasonably control or intimidate his or her spouse or partner or cause his or her spouse or partner mental harm, apprehension or fear, pursue a course of conduct made up of one or more of the following actions: (a) coercing his or her spouse or partner to relinquish control over assets or income; (b) disposing of property owned – (i) jointly by the person and his or her spouse or partner; or (ii) by his or her spouse or partner; or (iii) by an affected child – without the consent of the spouse or partner or affected child; (c) preventing his or her spouse or partner from participating in decisions over household expenditure or the disposition of joint property; (d) preventing his or her spouse or partner from accessing joint financial assets for the purposes of meeting normal household expenses; (e) withholding, or threatening to withhold, the financial support reasonably necessary for the maintenance of his or her spouse or partner or an affected child. Penalty: Fine not exceeding 40 penalty units or imprisonment for a term not exceeding 2 years. 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 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) 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) 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 – (a) a person has committed, or is likely to commit, family violence; and (b) the person is in possession or control of a firearm – the police officer may enter premises, without warrant and using such force as is reasonably necessary in the circumstances, in order to search for and seize the firearm. (6) On an application made by a police officer or by any person who claims to be the owner of an object seized and detained under subsection (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) 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) 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) 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. 11. Arrest and detention (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) 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 . 12. Bail (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) . . . . . . . . (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. 13. Sentencing factors When determining the sentence for a family violence offence, a court or a judge – (a) is to consider any of the following to be an aggravating factor: (i) 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; (ii) the fact that the offender knew, or was reckless as to whether, the affected person was pregnant; (iii) the fact that the offender is a serial family violence perpetrator; 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 and serial family violence perpetrators (1) 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. (1A) If a person is declared to be a serial family violence perpetrator, the court or judge that declares the person to be a serial family violence perpetrator is to direct that the declaration be recorded on the person's criminal record. (2) 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) 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 (1) If – (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 – 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. (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 (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 – (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 – 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. (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) 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; (g) refrain from engaging in any other conduct specified in the order that constitutes, or may constitute, family violence. (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) 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 15. Application for FVO (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. 16. Family violence orders (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) not possess firearms specified in the order or forfeit or dispose of any firearms in his or her possession; (c) submit to being electronically monitored by wearing and not removing, or always carrying, an electronic device which allows – (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 – to find or monitor the geographical location of the person; (d) attend and participate in a rehabilitation program and in doing so comply with the reasonable directions of a person employed or engaged to conduct the program. (3A) Before including a condition in an FVO under subsection (3)(d) , the court must – (a) make an order that a rehabilitation program assessment be undertaken in respect of the person and provided to the court by the Director of Corrective Services or any other person; and (b) satisfy itself that the person is eligible to participate in the rehabilitation program; and (c) satisfy itself that the rehabilitation program is available for the person to participate in at a suitable place and time. (3B) If the court includes in an FVO a condition of the kind referred to in subsection (3)(d) , the court may require the person against whom the FVO is to be made to, whilst attending and participating in the rehabilitation program, report to a person nominated by the Director of Corrective Services at such reasonable times and places as are determined by the Director of Corrective Services. (4) 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) In this section – original agreement means a residential tenancy agreement in relation to residential premises