Queensland: Domestic and Family Violence Protection Act 2012 (Qld)

Domestic and Family Violence Protection Act 2012 An Act to provide for protection of a person against violence committed or threatened by someone else if a relevant relationship exists between the persons Preamble In enacting this Act, the Parliament of Queensland recognises the following— 1 Australia is a party to the following instruments— • Universal Declaration of Human Rights • United Nations Declaration on the Elimination of Violence Against Women • United Nations Convention on the Rights of the Child • United Nations Principles for Older Persons. 2 Living free from violence is a human right and fundamental social value. 3 Domestic violence is a violation of human rights that is not acceptable in any community or culture and traditional or cultural practices can not be relied upon to minimise or excuse domestic violence. 4 Domestic violence is often an overt or subtle expression of a power imbalance, resulting in one person living in fear of another, and usually involves an ongoing pattern of abuse over a period of time. 5 Domestic violence can have serious impacts on people who experience it, including physical, emotional and psychological harm, and can result in death. 6 Perpetrators of domestic violence are solely responsible for their use of violence and its impacts on other people. 7 Domestic violence is most often perpetrated by men against women with whom they are in an intimate partner relationship and their children; however, anyone can be a victim or perpetrator of domestic violence. 8 Domestic violence is a leading cause of homelessness for women and children. 9 Children who are exposed to domestic violence can experience serious physical, psychological and emotional harm. 10 Behaviour that constitutes domestic violence can also constitute a criminal offence. Part 1 Preliminary Division 1 Introduction 1 Short title This Act may be cited as the Domestic and Family Violence Protection Act 2012. 2 Commencement This Act commences on 17 September 2012. Division 2 Main objects 3 Main objects (1) The main objects of this Act are— (a) to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and (b) to prevent or reduce domestic violence and the exposure of children to domestic violence; and (c) to ensure that people who commit domestic violence are held accountable for their actions. (2) The objects are to be achieved mainly by— (a) allowing a court to make a domestic violence order to provide protection against further domestic violence; and (b) giving police particular powers to respond to domestic violence, including the power to issue a police protection notice; and (c) imposing consequences for contravening a domestic violence order or police protection notice, in particular, liability for the commission of an offence. 4 Principles for administering Act (1) This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount. (2) Subject to subsection (1), this Act is also to be administered under the following principles— (a) people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised; (b) to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act; (c) perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change; (d) if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics; Examples of people who may be particularly vulnerable to domestic violence— • women • children • Aboriginal peoples and Torres Strait Islander peoples • people from a culturally or linguistically diverse background • people with disability • people who are lesbian, gay, bisexual, transgender or intersex • elderly people (e) in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection— (i) the person who is most in need of protection in the relationship should be identified; and (ii) only 1 domestic violence order protecting that person should be in force unless, in exceptional circumstances, there is clear evidence that each of the persons in the relationship is in need of protection from the other; (f) a civil response under this Act should operate in conjunction with, not instead of, the criminal law. Division 3 Interpretation 5 Dictionary The dictionary in the schedule defines particular words used in this Act. 6 Meaning of court Court means— (a) if an application is made to a Magistrates Court—the Magistrates Court; or (b) if an application is made to a magistrate—the magistrate; or (c) if a court convicts a person of a domestic violence offence—the court that convicts the person; or (d) if the Childrens Court is hearing a child protection proceeding—the Childrens Court. Part 2 Operation of Act Division 1 Preliminary 7 Purpose of this part (1) This part explains how domestic violence is dealt with under this Act, including setting out some of the ideas that are important for an understanding of this Act. (2) In particular, this part defines particular words used in this Act, including, for example, what is domestic violence and the relationships that are protected by this Act. Division 2 Domestic violence 8 Meaning of domestic violence (1) Domestic violence means behaviour, or a pattern of behaviour, by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that— (a) is physically or sexually abusive; or (b) is emotionally or psychologically abusive; or (c) is economically abusive; or (d) is threatening; or (e) is coercive; or (f) in any other way controls or dominates the second person and causes the second person to fear for the second person's safety or wellbeing or that of someone else. (2) Behaviour, or a pattern of behaviour, mentioned in subsection (1)— (a) may occur over a period of time; and (b) may be more than 1 act, or a series of acts, that when considered cumulatively is abusive, threatening, coercive or causes fear in a way mentioned in that subsection; and (c) is to be considered in the context of the relationship between the first person and the second person as a whole. (3) Without limiting subsection (1) or (2), domestic violence includes the following behaviour— (a) causing personal injury to a person or threatening to do so; (b) coercing a person to engage in sexual activity or attempting to do so; (c) damaging a person's property or threatening to do so; (d) depriving a person of the person's liberty or threatening to do so; (e) threatening a person with the death or injury of the person, a child of the person, or someone else; (f) threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed; (g) causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person; (h) unauthorised surveillance of a person; (i) unlawfully stalking, intimidating, harassing or abusing a person. (4) A person who counsels or procures someone else to engage in behaviour that, if engaged in by the person, would be domestic violence is taken to have committed domestic violence. (5) To remove any doubt, it is declared that, for behaviour mentioned in subsection (3) that may constitute a criminal offence, a court may make an order under this Act on the basis that the behaviour is domestic violence even if the behaviour is not proved beyond a reasonable doubt. (6) In this section— coerce, a person, means compel or force a person to do, or refrain from doing, something. unauthorised surveillance, of a person, means the unreasonable monitoring or tracking of the person's movements, activities or interpersonal associations without the person's consent, including, for example, by using technology. Examples of surveillance by using technology— • reading a person's SMS messages • monitoring a person's email account or internet browser history • monitoring a person's account with a social networking internet site • using a GPS device to track a person's movements • checking the recorded history in a person's GPS device unlawful stalking, intimidation, harassment or abuse see the Criminal Code, sections 359B and 359D. 9 Meaning of associated domestic violence Associated domestic violence means behaviour mentioned in section 8(1) by a respondent towards— (a) a child of an aggrieved; or (b) a child who usually lives with an aggrieved; or (c) a relative of an aggrieved; or (d) an associate of an aggrieved. 10 Meaning of exposed to domestic violence A child is exposed to domestic violence if the child sees or hears domestic violence or otherwise experiences the effects of domestic violence. Examples of being exposed to domestic violence— • overhearing threats of physical abuse • overhearing repeated derogatory taunts, including racial taunts • experiencing financial stress arising from economic abuse • seeing or hearing an assault • comforting or providing assistance to a person who has been physically abused • observing bruising or other injuries of a person who has been physically abused • cleaning up a site after property has been damaged • being present at a domestic violence incident that is attended by police officers 11 Meaning of emotional or psychological abuse Emotional or psychological abuse means behaviour, or a pattern of behaviour, by a person towards another person that torments, intimidates, harasses or is offensive to the other person. Examples— • following a person when the person is out in public, including by vehicle or on foot • remaining outside a person's residence or place of work • repeatedly contacting a person by telephone, SMS message, email or social networking site without the person's consent • repeated derogatory taunts, including racial taunts • threatening to disclose a person's sexual orientation to the person's friends or family without the person's consent • threatening to withhold a person's medication • preventing a person from making or keeping connections with the person's family, friends or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person's cultural identity 12 Meaning of economic abuse Economic abuse means behaviour, or a pattern of behaviour, by a person (the first person) that is coercive, deceptive or unreasonably controls another person (the second person), without the second person's consent— (a) in a way that denies the second person the economic or financial autonomy the second person would have had but for that behaviour; or (b) by withholding or threatening to withhold the financial support necessary for meeting the reasonable living expenses of the second person or a child, if the second person or the child is entirely or predominantly dependent on the first person for financial support to meet those living expenses. Examples— • coercing a person to relinquish control over assets and income • removing or keeping a person's property without the person's consent, or threatening to do so • disposing of property owned by a person, or owned jointly with a person, against the person's wishes and without lawful excuse • without lawful excuse, preventing a person from having access to joint financial assets for the purposes of meeting normal household expenses • preventing a person from seeking or keeping employment • coercing a person to claim social security payments • coercing a person to sign a power of attorney that would enable the person's finances to be managed by another person • coercing a person to sign a contract for the purchase of goods or services • coercing a person to sign a contract for the provision of finance, a loan or credit • coercing a person to sign a contract of guarantee • coercing a person to sign any legal document for the establishment or operation of a business Division 3 Relevant relationships 13 Meaning of relevant relationship A relevant relationship is— (a) an intimate personal relationship; or (b) a family relationship; or (c) an informal care relationship. 14 Meaning of intimate personal relationship An intimate personal relationship is— (a) a spousal relationship; or (b) an engagement relationship; or (c) a couple relationship. 15 Meaning of spousal relationship (1) A spousal relationship exists between spouses. Note— A reference to a spouse includes a de facto partner. For definitions of spouse and de facto partner, see the Acts Interpretation Act 1954, schedule 1 and section 32DA. (2) A spouse, of a person, includes— (a) a former spouse of the person; and (b) a parent, or former parent, of a child of the person. (3) For subsection (2)(b), it is irrelevant whether there is or was any relationship between the parents of the child. (4) In this section— former parent includes— (a) a birth parent who stops being a parent of a child under the Surrogacy Act 2010, section 39(2)(b); and (b) a birth parent who stops being a parent of a child under a cultural recognition order made under the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020. 16 Meaning of parent (1) A parent, of a child, means— (a) the child's mother or father; and (b) anyone else, other than the chief executive (child protection), having or exercising parental responsibility for the child. (2) However, a parent of a child does not include— (a) a person standing in the place of a parent of the child on a temporary basis; or (b) an approved foster carer for the child; or (c) an approved kinship carer for the child. (3) A parent of an Aboriginal child includes a person who, under Aboriginal tradition, is regarded as a parent of the child. (4) A parent of a Torres Strait Islander child includes a person who, under Island custom, is regarded as a parent of the child. (5) In this section— approved foster carer see the Child Protection Act 1999, schedule 3. approved kinship carer see the Child Protection Act 1999, schedule 3. 17 Meaning of engagement relationship An engagement relationship exists between 2 persons if the persons are or were engaged to be married to each other, including a betrothal under cultural or religious tradition. 18 Meaning of couple relationship (1) A couple relationship exists between 2 persons if the persons have or had a relationship as a couple. (2) In deciding whether a couple relationship exists, a court may have regard to the following— (a) the circumstances of the relationship between the persons, including, for example— (i) the degree of trust between the persons; and (ii) the level of each person's dependence on, and commitment to, the other person; (b) the length of time for which the relationship has existed or did exist; (c) the frequency of contact between the persons; (d) the degree of intimacy between the persons. (3) Without limiting subsection (2), the court may consider the following factors in deciding whether a couple relationship exists— (a) whether the trust, dependence or commitment is or was of the same level; (b) whether 1 of the persons is or was financially dependent on the other; (c) whether the persons jointly own or owned any property; (d) whether the persons have or had joint bank accounts; (e) whether the relationship involves or involved a relationship of a sexual nature; (f) whether the relationship is or was exclusive. (4) A couple relationship may exist even if the court makes a negative finding in relation to any or all of the factors mentioned in subsection (3). (5) A couple relationship may exist between 2 persons whether the persons are of the same or a different gender. (6) A couple relationship does not exist merely because 2 persons date or dated each other on a number of occasions. 19 Meaning of family relationship and relative (1) A family relationship exists between 2 persons if 1 of them is or was the relative of the other. (2) A relative of a person is someone who is ordinarily understood to be or to have been connected to the person by blood or marriage. Examples of an individual's relatives— an individual's spouse, child (including a child 18 years or more), stepchild, parent, step-parent, sibling, grandparent, aunt, nephew, cousin, half-brother, mother-in-law or aunt-in-law Examples of an individual's former relatives— • the person who would be the individual's mother-in-law if the individual was still in a spousal relationship with the person's son or daughter • the person who would be the step-parent of the individual if the spousal relationship between the person and the person's former spouse, the individual's parent, had not ended • the individual's step-siblings when the parent they do not have in common has died (3) For deciding if someone is connected by marriage, any 2 persons who are or were spouses of each other are considered to be or to have been married to each other. (4) A relative of a person (the first person) is also either of the following persons if it is or was reasonable to regard the person as a relative especially considering that for some people the concept of a relative may be wider than is ordinarily understood— (a) a person whom the first person regards or regarded as a relative; (b) a person who regards or regarded himself or herself as a relative of the first person. Examples of people who may have a wider concept of a relative— • Aboriginal people • Torres Strait Islanders • members of certain communities with non-English speaking backgrounds • people with particular religious beliefs (5) In deciding if a person is a relative of someone else— (a) a subsection of this section must not be used to limit another subsection of this section; and (b) each subsection is to have effect even though, as a result, a person may be considered to be a relative who would not ordinarily be understood to be a relative. 20 Meaning of informal care relationship (1) An informal care relationship exists between 2 persons if 1 of them is or was dependent on the other person (the carer) for help in an activity of daily living. Examples of help in an activity of daily living— • dressing or other personal grooming of a person • preparing a person's meals or helping a person with eating meals • shopping for a person's groceries • telephoning a specialist to make a medical appointment for a person (2) An informal care relationship does not exist between a child and a parent of a child. (3) An informal care relationship does not exist between 2 persons if 1 person helps the other person in an activity of daily living under a commercial arrangement. Example for subsection (3)— The relationship between a person and a nurse who visits the person each day to help with bathing and physiotherapy is not an informal care relationship because the nurse visits the person under a commercial arrangement made between the person and the nurse's employer. (4) For subsection (3)— (a) a commercial arrangement may exist even if a person does not pay a fee for the help provided under the arrangement; and Example for paragraph (a)— The provision of help by a voluntary organisation for which a person does not pay a fee may still be under a commercial arrangement. (b) an arrangement is not a commercial arrangement because 1 person receives a pension or allowance, or reimbursement for the purchase price of goods, for the help provided under the arrangement; and (c) an arrangement is not a commercial arrangement if 1 person pays a fee for the help provided under the arrangement because of domestic violence committed by the other person. Division 4 Overview 21 Who is an aggrieved and who is a respondent (1) An aggrieved means the person for whose benefit a domestic violence order, or a police protection notice, is in force or may be made under this Act. (2) Only 1 person may be named as the aggrieved in an application for a domestic violence order, or in a domestic violence order or police protection notice. (3) A respondent means a person against whom a domestic violence order, or a police protection notice, is in force or may be made under this Act. (4) More than 1 person may be named as the respondent in an application for a domestic violence order, or in a domestic violence order. (5) Only 1 person may be named as the respondent in a police protection notice. 22 Child as aggrieved or respondent (1) A person who is a child can be named as the aggrieved or the respondent in an application for a domestic violence order, or in a domestic violence order or police protection notice. (2) However, a child can only be named as the aggrieved or the respondent if an intimate personal relationship or an informal care relationship exists between the child and the other party named in the application, order or notice. (3) Subsection (2) does not limit— (a) the interstate orders that are recognised interstate orders under part 6; or (b) the New Zealand orders that may be registered under part 6, division 4. (4) In this section— other party, named in an application, order or notice, means— (a) in relation to an aggrieved—the respondent or any 1 of the respondents named in the application, order or notice; or (b) in relation to a respondent—the aggrieved named in the application, order or notice. 22A Who is the person most in need of protection in a relevant relationship (1) A person (the first person), who is in a relevant relationship with another person (the second person), is the person most in need of protection in the relationship if, when the behaviour of each of the persons is considered in the context of their relationship as a whole— (a) the behaviour of the second person towards the first person is, more likely than not— (i) abusive, threatening or coercive; or (ii) controlling or dominating of the first person and causing the first person to fear for the safety or wellbeing of the first person, a child of the first person, another person or an animal (including a pet); or (b) the first person's behaviour towards the second person is, more likely than not— (i) for the first person's self-protection or the protection of a child of the first person, another person or an animal (including a pet); or (ii) in retaliation to the second person's behaviour towards the first person, a child of the first person, another person or an animal (including a pet); or (iii) attributable to the cumulative effect of the second person's domestic violence towards the first person. (2) In deciding which person in a relevant relationship is the person most in need of protection, a court must consider— (a) the history of the relevant relationship, and of domestic violence, between the persons; and (b) the nature and severity of the harm caused to each person by the behaviour of the other person; and (c) the level of fear experienced by each person because of the behaviour of the other person; and (d) which person has the capacity— (i) to seriously harm the other person; or (ii) to control or dominate the other person and cause the other person to fear for the safety or wellbeing of the first person, a child of the first person, another person or an animal (including a pet); and (e) whether the persons have characteristics that may make them particularly vulnerable to domestic violence. Examples of people who may be particularly vulnerable to domestic violence— • women • children • Aboriginal peoples and Torres Strait Islander peoples • people from a culturally or linguistically diverse background • people with disability • people who are lesbian, gay, bisexual, transgender or intersex • elderly people 23 What orders can a court make to prevent domestic violence (1) A court can make a domestic violence order against a respondent for the benefit of an aggrieved. (2) A domestic violence order means— (a) a protection order; or (b) a temporary protection order. (3) A temporary protection order is an order made in the period before a court decides whether to make a protection order for the benefit of an aggrieved. (4) Sometimes, the court can make a domestic violence order even though the person against whom the order is made— (a) is not notified about an application for a domestic violence order; or (b) does not appear in court. 24 Who can a domestic violence order protect (1) As well as the aggrieved, the following persons can be protected by a domestic violence order— (a) a child of the aggrieved; (b) a child who usually lives with the aggrieved; (c) a relative of the aggrieved; (d) an associate of the aggrieved. (2) A child who usually lives with the aggrieved means a child who spends time at the residence of the aggrieved on a regular or on-going basis. (3) An associate of the aggrieved means either of the following persons if it is reasonable to regard the person as an associate— (a) a person whom the aggrieved regards as an associate; (b) a person who regards himself or herself as an associate of the aggrieved. Examples of persons who could be associates of the aggrieved— • a person who is the current spouse or partner of the aggrieved • a person who works at the same place as the aggrieved • a person who lives at the same place as the aggrieved • a person who provides support or assistance to the aggrieved, including, for example, a friend or neighbour (4) A person mentioned in subsection (1) is protected by being specifically named in the domestic violence order under section 52 or 53. (5) The person may be specifically named in the domestic violence order when it is made or at a later time if it is varied. (6) The specifically named person is called a named person. 25 Who can apply for a protection order (1) An application for a protection order can be made only by— (a) an aggrieved; or (b) an authorised person for an aggrieved; or (c) a police officer under section 100(2)(a); or (d) a person acting under another Act for the aggrieved. Examples of persons acting under another Act— • a guardian for a personal matter of the aggrieved under the Guardianship and Administration Act 2000 • an attorney for a personal matter of the aggrieved under an enduring power of attorney under the Powers of Attorney Act 1998 (2) An authorised person for an aggrieved means— (a) an adult authorised in writing by the aggrieved to appear on behalf of the aggrieved; or (b) an adult whom the court believes is authorised by the aggrieved to appear on behalf of the aggrieved even though the authority is not in writing. Example for paragraph (b)— A 19-year-old man has a physical disability that results in him not being able to sign an authority. He alleges his uncle has threatened physical harm to him. The man orally authorises his grandfather to apply for a protection order against the uncle. The court may believe the grandfather is authorised to appear on behalf of the man after hearing evidence about the authorisation. (3) A person who may make an application for a protection order under subsection (1) may make other applications or bring other proceedings under this Act in relation to a domestic violence order made because of the application for the protection order. 26 When can a court make a protection order A court can make a protection order if— (a) an application for a protection order is made to the court by any of the persons mentioned in section 25(1); or (b) the court convicts a person of a domestic violence offence; or (c) the court is the Childrens Court hearing a child protection proceeding. 27 When can a court make a temporary protection order A court can make a temporary protection order if— (a) the court adjourns a proceeding mentioned in section 44(1)(a), (b) or (c); or (b) the applicant for a protection order has asked the clerk of the court under section 36 for the application to be heard by the court— (i) before the application is served on the respondent; or (ii) before the application is served on the respondent and without the applicant giving the court a verification declaration; or (c) the applicant for the variation of a protection order has asked the clerk of the court under section 90 for the application to be heard by the court— (i) before the application is served on the respondent; or (ii) before the application is served on the respondent and without the applicant giving the court a variation declaration; or (d) a police officer applies for a temporary protection order under part 4, division 4. 28 What are the conditions of a domestic violence order If a court makes a domestic violence order— (a) the respondent must be of good behaviour and must not commit domestic violence or associated domestic violence; and (b) if a child of the aggrieved, or a child who usually lives with the aggrieved, is a named person in the order, the respondent must not expose the child to domestic violence; and (c) the respondent must comply with any other conditions imposed by the court and stated in the order. Note— See part 3, division 5 for provisions about the other conditions a court can impose on the respondent. 29 What happens if circumstances change after a domestic violence order is made If circumstances change after a domestic violence order is made, a person can apply under section 86 for a variation of the order. Examples of changes of circumstances— 1 A protection order is made that includes only the standard conditions. The respondent commits further, and more serious, domestic violence against the aggrieved. In addition to charging the respondent with an offence, a police officer may apply for a variation of the protection order to include additional conditions in the order to give greater protection to the aggrieved. 2 A temporary protection order is made because of an application under section 129 by a police officer. The aggrieved's place of residence is stated in the order as premises that the respondent is prohibited from approaching. If the aggrieved's place of residence changes, a variation of the temporary protection order may be sought under section 86. 30 What can happen if a respondent does not comply with a domestic violence order (1) If a respondent does not comply with a domestic violence order, including a recognised interstate order, a police officer can charge the respondent with an offence. (2) An aggrieved, named person or anyone else can complain to a police officer that the respondent is not complying with the order. 31 What is the effect of an order made in another State or New Zealand (1) If a person has obtained an interstate order in another State, the interstate order is a recognised interstate order under part 6 and enforceable under this Act. (2) If a person has obtained a New Zealand order, the New Zealand order— (a) may be registrable in Queensland under part 6 or in another State under a corresponding law; and (b) if registered in Queensland or another State, is a recognised interstate order under part 6 and enforceable under this Act. Part 3 Domestic violence orders Division 1 Protection orders 32 Application for protection order (1) An application for a protection order may be made to a Magistrates Court by— (a) an aggrieved; or (b) an authorised person for an aggrieved; or (c) a police officer under section 100(2)(a); or (d) a person acting under another Act for an aggrieved. (2) The application must— (a) be in the approved form; and (b) state the grounds on which it is made; and (c) state the nature of the order sought; and (d) if the applicant is not a police officer—be verified by the applicant by a statutory declaration (a verification declaration); and (e) be filed in the court. (3) However, subsection (2)(d) does not apply to an applicant if the clerk of the court agrees to grant the applicant's request under section 36(2)(b). 33 Fixing of date, time and place for hearing (1) If the applicant for the protection order is a police officer, as soon as practicable after the application is prepared, the police officer must prepare a copy of the application that states the date, time and place for the hearing of the application. (2) If the applicant for the protection order is not a police officer, as soon as practicable after the application is filed in the court, the clerk of the court must— (a) write on a copy of the application the date, time and place for the hearing of the application; and (b) give the copy of the application to— (i) the applicant; and (ii) the officer in charge of the police station nearest the place where the respondent lives or was last known to live. 34 Service of application (1) A police officer must personally serve the copy of the application prepared under section 33(1) or (2)(a) on the respondent. Note— Under section 36 an applicant may ask the court for a hearing before the application is served on the respondent. (2) The copy of the application must state that, if the respondent does not appear in court— (a) a domestic violence order may be made in the respondent's absence; or (b) the court may issue a warrant for the respondent to be taken into custody by a police officer if the court believes that it is necessary for the respondent to be heard. (3) To remove any doubt, it is declared that, if an application for a protection order is made by a police officer, the application may be served on the respondent before the application is filed in the court. Note— Section 153 provides that a police officer may file a document in a proceeding under this Act by electronic or computer-based means. 35 Copy of application must be given to aggrieved (1) If the applicant for a protection order is not the aggrieved, the applicant must give a copy of the application to the aggrieved. (2) Failure to comply with subsection (1) does not invalidate or otherwise affect an application for a protection order. 36 Applicant may ask clerk of court for hearing before respondent is served or without giving verification declaration (1) This section applies for the purpose of the court making a temporary protection order under division 2. (2) The applicant for a protection order may ask the clerk of the court to arrange for the application to be heard by the court— (a) before the application is served on the respondent; or (b) before the application is served on the respondent and without the applicant giving the court a verification declaration. (3) This section applies despite section 34. 36A Court must be given respondent's criminal history and domestic violence history (1) This section applies if— (a) a police officer makes an application for a protection order; or (b) the clerk of the court gives an application for a protection order to the officer in charge of a police station under section 33(2)(b); or (c) a copy of a police protection notice issued by a police officer is filed in the court to be heard as an application for a protection order. (2) The police commissioner must ensure a copy of the respondent's criminal history and domestic violence history— (a) is filed in the court— (i) with an application or police protection notice mentioned in subsection (1)(a) or (c); or (ii) before the date and time stated in the application for the first hearing of the application; or (b) is given to the court when the application is first heard. (3) If the respondent does not have a criminal history or domestic violence history, the police commissioner must ensure the court is informed of that fact. 37 When court may make protection order (1) A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that— (a) a relevant relationship exists between the aggrieved and the respondent; and (b) the respondent has committed domestic violence against the aggrieved; and Note— See the examples of the type of behaviour that constitutes domestic violence in sections 8, 11 and 12, which define the terms domestic violence, emotional or psychological abuse and economic abuse. (c) the protection order is necessary or desirable to protect the aggrieved from domestic violence. (2) In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence— (a) the court must consider— (i) the principles mentioned in section 4; and (ii) if an intervention order has previously been made against the respondent and the respondent has failed to comply with the order—the respondent's failure to comply with the order; and (iii) the respondent's criminal history and domestic violence history filed in or given to the court under section 36A; and (b) if an intervention order has previously been made against the respondent and the respondent has complied with the order—the court may consider the respondent's compliance with the order. (3) However, the court must not refuse to make a protection order merely because the respondent has complied with an intervention order previously made against the respondent. (4) If an application for a protection order names more than 1 respondent, the court may make a domestic violence order or domestic violence orders naming 1, some or all of the respondents, as the court considers appropriate. (5) If the court decides to make a protection order against the respondent, the court must consider the appropriate period for which the order is to continue in force. Note— See section 97 for matters to be considered when deciding the period for which a protection order is to continue in force. (6) This section applies subject to section 41G. 38 Hearing of application—appearance of respondent (1) This section applies if a respondent appears before the court that is to hear and decide an application for a protection order. (2) The court may— (a) hear and decide the application; or (b) adjourn the application, whether or not it makes a temporary protection order under division 2; or (c) subject to subsection (3), dismiss the application without deciding it. (3) The court may dismiss an application without deciding it only if— (a) the applicant has not appeared; and (b) if the applicant is a police officer—no other police officer or service legal officer has requested an adjournment; and (c) no other person eligible to apply for the protection order has appeared. (4) The dismissal of an application does not affect the right of the applicant to make a further application against the respondent. 39 Hearing of application—non-appearance of respondent (1) This section applies if a respondent fails to appear before the court that is to hear and decide an application for a protection order and the court is satisfied that the respondent has been served with a copy of the application. Note— If a respondent has been served with a police protection notice, because of section 112, the respondent is taken to have been served with a copy of an application for a protection order. (2) The court may— (a) hear and decide the application in the absence of the respondent; or (b) adjourn the application, whether or not it makes a temporary protection order under division 2; or (c) subject to section 156(1), order the issue of a warrant for the respondent to be taken into custody by a police officer and brought before the court. 40 Hearing of application—before respondent is served (1) This section applies if a court hears an application for a protection order before the application is served on the respondent. (2) The court may adjourn the application, whether or not it makes a temporary protection order under division 2. Division 1A Cross applications 41 Definitions for division In this division— cross application see section 41A(1)(b), (2)(d)(ii) and (3)(c). original application see section 41A(1)(a) and (2)(d)(i). original protection order see section 41A(3)(a). variation application see section 41A(3)(b). 41A Application of particular provisions (1) Sections 41B to 41E apply if— (a) an application (the original application) for a protection order has been made and is before a court; and (b) a second application for a protection order (the cross application) has been made and is before the same court or another court; and (c) a person named as a respondent in the original application is named as the aggrieved in the cross application; and (d) the person named as the aggrieved in the original application is named as a respondent in the cross application. (2) Also, sections 41B to 41E apply if— (a) 2 protection orders have been made by the same court or by different courts; and (b) a person named as a respondent in one of the protection orders (the first protection order) is named as the aggrieved in the other protection order (the second protection order); and (c) the person named as the aggrieved in the first protection order is named as a respondent in the second protection order; and (d) both of the following applications have been made and are before a court— (i) an application to vary the first protection order (also the original application); (ii) an application to vary the second protection order (also the cross application) made after the original application. (3) In addition, sections 41B to 41E apply if— (a) a protection order (the original protection order) has been made; and (b) an application for variation of the original protection order (the variation application) has been made and is before a court; and (c) an application for a second protection order (also the cross application) has been made and is before a court; and (d) a person named as a respondent in the original protection order is named as the aggrieved in the cross application; and (e) the person named as the aggrieved in the original protection order is named as a respondent in the cross application. (4) For subsection (3), it does not matter whether the variation application was made before or after the cross application. 41B Parties must disclose cross applications (1) Each of the following persons must inform the court to which the original application or cross application was made about the other application— (a) a person who is a party to a proceeding for the original application and is aware of the cross application; (b) a person who is a party to a proceeding for the cross application and is aware of the original application. (2) Also, each of the following persons must inform the court to which the variation application or cross application was made about the other application— (a) a person who is a party to the variation application and is aware of the cross application; (b) a person who is a party to the cross application and is aware of the variation application. (3) In this section— party includes an aggrieved. 41C Hearing of applications—cross applications before same court (1) This section applies if— (a) either— (i) the original application and cross application are before the same court; or (ii) the variation application and cross application are before the same court; and (b) the court is aware of both applications. (2) The court must— (a) hear the applications together; and (b) in hearing the applications, consider— (i) the principle mentioned in section 4(2)(e); and (ii) whether it is necessary to make arrangements for the safety, protection or wellbeing of the person most in need of protection in the relevant relationship that exists between the persons who are the aggrieveds and respondents to the applications. Note— See, for example, sections 150 and 151 for the power of the court to make orders in relation to a person giving evidence or being cross-examined as a protected witness. (3) If the court decides to adjourn the hearing of either application or both applications, the court must consider whether to make a temporary protection order under division 2 in relation to each adjourned hearing. 41D Hearing of applications—cross applications before different courts (1) This section applies if— (a) either— (i) the original application and the cross application are before different courts; or (ii) the variation application and the cross application are before different courts; and (b) a court hearing either application is aware of both applications. (2) The court must consider whether to, and may— (a) hear the applications together; or (b) order that the application before the court be dealt with by the other court. (3) If the court hears the applications, the court must consider— (a) the principle mentioned in section 4(2)(e); and (b) whether it is necessary to make arrangements for the safety, protection or wellbeing of the person most in need of protection in the relevant relationship that exists between the persons who are the aggrieveds and respondents to the applications. Note— See, for example, sections 150 and 151 for the power of the court to make orders in relation to a person giving evidence or being cross-examined as a protected witness. (4) If the court decides to adjourn the hearing of the application before it, the court must consider whether to make a temporary protection order under division 2 in relation to the adjourned hearing. 41E Hearing of applications—unreasonable notice of cross application (1) Subsection (2) applies if the cross application mentioned in section 41A(1)(b) is not served, within a reasonable period, on a respondent to the cross application who is also the aggrieved named in the original application. (2) The court may hear the cross application before the original application or together with the original application only if the aggrieved named in the original application consents. (3) Subsection (4) applies if the cross application mentioned in section 41A(2)(d)(ii) is not served, within a reasonable period, on a respondent to the cross application who is also the applicant for the original application. (4) The court may hear the cross application before the original application or together with the original application only if the applicant for the original application consents. (5) Subsection (6) applies if the cross application mentioned in section 41A(3)(c) is not served, within a reasonable period, on a respondent to the cross application who is also the applicant for the variation application. (6) The court may hear the cross application before the variation application or together with the variation application only if the applicant for the variation application consents. (7) If the consent mentioned in subsection (2), (4) or (6) is not given, the court must— (a) adjourn the hearing of the cross application; and (b) if the cross application has not been served on the respondent to the application mentioned in subsection (1), (3) or (5)—set a date by which the application is to be served. (8) Subsection (9) applies if the variation application mentioned in section 41A(3)(b) is not served, within a reasonable period, on a respondent to the variation application who is also the aggrieved named in the cross application. (9) The court may hear the variation application before the cross application or together with the cross application only if the aggrieved named in the cross application consents. (10) If the consent mentioned in subsection (9) is not given, the court must— (a) adjourn the hearing of the variation application; and (b) if the variation application has not been served on the aggrieved named in the cross application—set a date by which the application is to be served. (11) In this section— reasonable period means— (a) at least 1 business day before the day of the hearing of the original application or variation application; or (b) within a longer period before the day of the hearing of the original application or variation application the court considers is reasonable in the circumstances. 41F Hearing of application—existing protection order (1) Subsections (2) and (3) apply if— (a) a protection order has been made by a court; and (b) an application for another protection order has been made and is before the same court or another court; and (c) a person named as a respondent in the protection order is named as the aggrieved in the application; and (d) the person named as the aggrieved in the protection order is named as a respondent in the application. (2) Each person who is a party to a proceeding for the application and is aware of the protection order must inform the court to which the application was made about the order. (3) The court hearing the application must take into account the court records relating to the making of the protection order. (4) Subsections (5) and (6) apply if— (a) 2 protection orders have been made by the same court or by different courts; and (b) a person named as a respondent in one of the protection orders (the first protection order) is named as the aggrieved in the other protection order (the second protection order); and (c) the person named as the aggrieved in the first protection order is named as a respondent in the second protection order; and (d) an application to vary either of the protection orders has been made and is before a court. (5) Each person who is a party to a proceeding for the application and is aware of either protection order must inform the court to which the application was made about the order. (6) The court hearing the application must take into account the court records relating to the making of both protection orders. (7) In this section— party includes an aggrieved. 41G Deciding cross applications (1) This section applies to a court hearing the following applications together under section 41C, 41D or 41E— (a) the original application and cross application; (b) the variation application and cross application. (2) The court must decide— (a) which of the parties to the relevant relationship is the person most in need of protection in the relationship; and (b) the application that makes, or varies, the protection order that is necessary or desirable to protect the person most in need of protection from domestic violence; and (c) if the other application is an application for a protection order—to dismiss the other application; and (d) if the other application is an application for the variation of a protection order—to vary the order by reducing its duration so that the order ends. (3) Despite subsection (2), the court may make, or vary, a protection order under both applications if the court is satisfied that, in exceptional circumstances— (a) there is clear evidence that each of the parties to the relevant relationship is in need of protection from the other party; and (b) it is not possible to decide whether 1 party's need for protection is greater than the other party's need for protection. (4) The relevant relationship mentioned in subsection (2) and (3) is the relevant relationship that exists between the persons who are the aggrieved and the respondent to— (a) the original application and the cross application mentioned in section 41A(1); or (b) the first protection order and second protection order mentioned in section 41A(2); or (c) the original protection order and the cross application mentioned in section 41A(3). Division 1B Domestic violence orders in criminal and child protection proceedings 42 When court on its own initiative can make or vary order against offender (1) This section applies if a court convicts a person (the offender) of a domestic violence offence. (2) The court may, on its own initiative, make a protection order against the offender if the court is satisfied that, under section 37, a protection order could be made against the offender. (3) Despite section 37(2)(a)(iii), in deciding whether to make a protection order under subsection (2), the court is not required to, but may, consider the offender's criminal history and domestic violence history. (4) If a domestic violence order is already in force against the offender, the court— (a) must consider the order and whether, in the circumstances, the order needs to be varied, including, for example, by varying the date the order ends; and (b) may, on its own initiative, vary the order. (5) However, the court may not make a protection order under subsection (2) or vary a domestic violence order under subsection (4) unless the following persons have been given a reasonable opportunity to present evidence and to prepare and make submissions about the making or variation of the order— (a) the offender; (b) the prosecuting authority for the offence; (c) if reasonably practicable, the person who is or would be named as the aggrieved in the order. (6) A court exercising jurisdiction under this section— (a) may make the protection order, or vary the domestic violence order, before the offender is discharged by the court or otherwise leaves the court; or (b) may adjourn the matter of making the protection order, or varying the domestic violence order, to a later fixed time and day and may, in the meantime, make a temporary protection order under division 2. (7) If the court adjourns the matter under subsection (6)(b), the court— (a) must inform the offender that if the offender does not appear in court at the later time and day to which the matter has been adjourned— (i) a protection order may be made, or a domestic violence order varied, in the offender's absence; and (ii) the court may issue a warrant for the respondent to be taken into custody by a police officer if the court believes that it is necessary for the respondent to be heard; and (b) may issue any direction that it considers necessary. (8) If the offender fails to appear at the later time and day to which the matter is adjourned, the court may— (a) make a protection order against the offender, or vary a domestic violence order against the offender, in the offender's absence; or (b) adjourn the matter further and may, in the meantime, make a temporary protection order under division 2; or (c) subject to section 156(1), order the issue of a warrant for the offender to be taken into custody by a police officer and brought before the court. (9) Despite section 158, a proceeding to make or vary a protection order under this section must be held by the court in open court, other than when the court orders the court be closed. (10) This section does not limit the power of the court to make any other order against the offender. (11) To remove any doubt, it is declared that section 145 applies to a proceeding to make or vary a protection order under this section. 43 When Childrens Court can make or vary order against parent of a child (1) This section applies if the Childrens Court is hearing a child protection proceeding. (2) The court may make a protection order against a parent of a child for whom an order is sought in the child protection proceeding (the parent) if— (a) the court is satisfied that, under section 37, a protection order could be made against the parent; and (b) the person who would be named as the aggrieved in the protection order is also a parent of a child for whom an order is sought in the child protection proceeding. (3) If a domestic violence order is already in force against a parent of a child for whom an order is sought in the child protection proceeding (also the parent), the court must consider the order and whether, in the circumstances, the order needs to be varied, including, for example— (a) by varying the date the order ends; or (b) to ensure the terms of the order are consistent with an order proposed to be made in the child protection proceeding. (4) The court may make a protection order under subsection (2) or vary a domestic violence order under subsection (3) on its own initiative or on the application of a party to the child protection proceeding. (5) However, the court may not make a protection order under subsection (2) or vary a domestic violence order under subsection (3) unless each party to the child protection proceeding has been given a reasonable opportunity to present evidence and to prepare and make submissions about the making or variation of the order. (6) Despite section 37(2)(a)(iii), in deciding whether to make a protection order under subsection (2) or vary a domestic violence order under subsection (3), the court is not required to, but may, consider the parent's criminal history and domestic violence history. (7) A court exercising jurisdiction under this section— (a) may make the protection order, or vary the domestic violence order, during the hearing of the child protection proceeding; or (b) may adjourn the matter of making the protection order, or varying the domestic violence order, to a later fixed time and day and may, in the meantime, make a temporary protection order under division 2. (8) If the court adjourns the matter under subsection (7)(b), the court— (a) must inform the parent that if the parent does not appear in court at the later time and day to which the matter has been adjourned— (i) a protection order may be made, or a domestic violence order varied, in the parent's absence; and (ii) the court may issue a warrant for the parent to be taken into custody by a police officer if the court believes that it is necessary for the parent to be heard; and (b) may issue any direction that it considers necessary. (9) If the parent fails to appear at the later time and day to which the matter is adjourned, the court may— (a) make a protection order against the parent, or vary a domestic violence order against the parent, in the parent's absence; or (b) adjourn the matter further and may, in the meantime, make a temporary protection order under division 2; or (c) subject to section 156(1), order the issue of a warrant for the parent to be taken into custody by a police officer and brought before the court. (10) This section does not limit the power of the court to make any order under the Child Protection Act 1999. (11) In this section— party, to a child protection proceeding, means— (a) a child for whom an order is sought in the proceeding; or (b) a separate legal representative, if any, for a child mentioned in paragraph (a); or (c) an applicant or respondent in the proceeding. separate legal representative means a lawyer appointed under the Child Protection Act 1999, section 110. Division 2 Temporary protection orders 44 When court may make temporary protection order (1) A court may make a temporary protection order if—