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DOMESTIC AND FAMILY VIOLENCE AMENDMENT BILL 2010

Serial 128
Domestic and Family Violence Amendment Bill 2010
Ms Lawrie






A Bill for an Act to amend the Domestic and Family Violence Act













NORTHERN TERRITORY OF AUSTRALIA

DOMESTIC AND FAMILY VIOLENCE AMENDMENT ACT 2010

____________________

Act No. [ ] of 2010

____________________

Table of provisions

35A Court may refuse to hear application or order stay of proceeding
52A Interim variation order
64 DVOs to which Division applies
84 Power to remove and detain
105 Application of Part

bill_text00.jpg
NORTHERN TERRITORY OF AUSTRALIA

____________________

Act No. [ ] of 2010

____________________

An Act to amend the Domestic and Family Violence Act

[Assented to [ ] 2010]

[Second reading [ ] 2010]

The Legislative Assembly of the Northern Territory enacts as follows:

1 Short title

This Act may be cited as the Domestic and Family Violence Amendment Act 2010.

2 Act amended

This Act amends the Domestic and Family Violence Act.

3 Commencement

This Act commences on the day fixed by the Administrator by Gazette notice.

4 Section 4 amended

(1) Section 4, definitions domestic violence order or DVO and proceeding

omit

(2) Section 4

insert (in alphabetical order)

domestic violence order means a court DVO or police DVO, and includes:

(a) a DVO as varied under Part 2.7 or 2.8; and

(b) a police DVO as varied under Part 2.8, Division 2, or confirmed under Part 2.9.

DVO is an acronym for domestic violence order.

interim variation order, see section 52A.

proceeding means:

(a) the hearing of an application for:

(i) a DVO; or

(ii) the variation or revocation of a DVO; or

(b) a proceeding for the confirmation of a DVO; or

(c) a proceeding for an offence against this Act.

5 Section 22 amended

Section 22(1)(a) and (b)

omit, insert

(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.

6 Section 23 amended

(1) Section 23(1)

omit, insert

(1) This section applies if:

(a) a court DVO includes a premises access order for premises where the defendant and protected person live together or previously lived together; and

(b) the defendant and protected person are tenants of the premises.

(2) Section 23(2)(b)

omit, insert

(b) an order creating a new tenancy agreement (the replacement agreement):

(i) for the benefit of the protected person and anyone else who was a party to the terminated agreement other than the defendant; or

(ii) with the agreement of the protected person, for the benefit of the defendant and anyone else who was a party to the terminated agreement.

7 Section 35A inserted

Before section 36, in Part 2.4, Division 3

insert

35A Court may refuse to hear application or order stay of proceeding

(1) This section applies if the Court is satisfied an application for a DVO is frivolous, vexatious or an abuse of the process of the Court.

(2) The Court may, at any time after the application is filed (regardless of whether notice about the hearing of the application is given to the parties to the DVO), decide:

(a) to refuse to hear the application; or

(b) if a hearing for the application has started – to order a stay of the proceeding.

(3) The Court must immediately give the parties notice of the decision.

8 Section 36 amended

Section 36, at the end

insert

Note for section 36

Under section 119, a copy of a DVO is given to the defendant if the defendant is before the Court when it is made. Otherwise a copy of a DVO is given to the defendant if it is given in any of the ways mentioned in that section.

9 Section 40 amended

Section 40, at the end

insert

Note for section 40

Under section 119, a copy of a DVO is given to the defendant if the defendant is before the Court or clerk when it is made. Otherwise a copy of a DVO is given to the defendant if it is given in any of the ways mentioned in that section.

10 Section 41 amended

Section 41(1)

omit, insert

(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.

11 Section 46 amended

(1) Section 46

omit

a court DVO

insert

the DVO

(2) Section 46, at the end

insert

Note for section 46

Under section 119, a copy of a DVO is given to the defendant if the defendant is before the court when it is made. Otherwise a copy of a DVO is given to the defendant if it is given in any of the ways mentioned in that section.

12 Section 52A inserted

After section 52

insert

52A Interim variation order

The Court may, during the hearing of an application for an order to vary or revoke a DVO, make an order (an interim variation order) to vary the DVO until the application is finally decided.

13 Section 53 amended

Section 53, after "whether to make an"

insert

interim variation order or

14 Section 54 amended

(1) Section 54, after "Court makes an"

insert

interim variation order or

(2) Section 54, at the end

insert

Note for section 54

Under section 119, a copy of a DVO is given to the defendant if the defendant is before the Court when it is made. Otherwise a copy of a DVO is given to the defendant if it is given in any of the ways mentioned in that section.

15 Section 58 amended

Section 58, at the end

insert

Note for section 58

Under section 119, a copy of a DVO is given to the defendant if the defendant is before the Court or clerk when it is made. Otherwise a copy of a DVO is given to the defendant if it is given in any of the ways mentioned in the section.

16 Section 63 amended

(1) Section 63, after "the Court"

insert

or clerk

(2) Section 63, at the end

insert

Note for section 63

Under section 119, a copy of a DVO is given to the defendant if the defendant is before the Court or clerk when it is made. Otherwise a copy of a DVO is given to the defendant if it is given in any of the ways mentioned in that section.

17 Section 64 replaced

Section 64

repeal, insert

64 DVOs to which Division applies

This Division applies to the following DVOs:

(a) a court DVO other than an interim DVO;

(b) a police DVO.

18 Section 65 amended

(1) Section 65(1), after "varying a"

insert

court

(2) After section 65(1)

insert

(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.

19 Section 67 amended

Section 67(2)(b)

omit, insert

(b) by order vary the DVO; or

(c) for a police DVO – revoke the DVO.

20 Section 68 amended

Section 68, heading

omit

does

insert

must do

21 Section 69 amended

Section 69, heading

omit

does

insert

must do

22 Section 70 amended

(1) Section 70, heading

omit

do

insert

must do

(2) Section 70(2), at the end

insert

Note for subsection (2)(a)

A DVO is given to the defendant if it is given in any of the ways mentioned in section 119.

23 Section 78 amended

(1) Section 78, heading

omit

officers

insert

officer

(2) Section 78(2), at the end

insert

Note for subsection(2)(a)

A DVO is given to the defendant if it is given in any of the ways mentioned in section 119.

24 Section 83 amended

Section 83, at the end

insert

Note for section 83

Under section 119, a copy of a DVO is given to the defendant if the defendant is before the Court when it is made. Otherwise a copy of a DVO is given to the defendant if it is given in any of the ways mentioned in that section.

25 Section 84 replaced

Section 84

repeal, insert

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.

(7) In this section:

health practitioner means:

(a) a medical practitioner; or

(b) a person registered under the Health Practitioner Regulation National Law to practise in the nursing and midwifery profession as a nurse (other than as a student); or

(c) a person who has a right of practice under the Health Practitioners Act in the category of health care practice of Aboriginal health work.

intoxication means intoxication because of the influence of alcohol, a drug or another substance or any combination of them.

senior police officer means a police officer of or above the rank of superintendent.

26 Section 105 replaced

Section 105

repeal, insert

105 Application of Part

This Part applies only to the following proceedings:

(a) a proceeding for the hearing of an application for:

(i) a DVO; or

(ii) the variation or revocation of a DVO;

(b) a proceeding for the confirmation of a DVO.

27 Section 119 amended

Section 119(a)

omit

the court

insert

the issuing authority

28 Section 121 amended

Section 121(6) and (7)

omit, insert

(6) Subsection (7) applies if, when the person is sentenced under this section to serve a term of imprisonment for the offence, the person:

(a) is serving a term of imprisonment for another offence; or

(b) has been sentenced to serve a term of imprisonment for another offence.

(7) Despite section 50 of the Sentencing Act, the court must not direct the term of imprisonment to be served concurrently with the other term of imprisonment mentioned in subsection (6)(a) or (b).

29 Section 123 amended

Section 123(4), definition proceeding

omit, insert

proceeding means:

(a) a proceeding for the hearing of an application for:

(i) a DVO; or

(ii) the variation or revocation of a DVO; or

(b) a proceeding for the confirmation of a DVO.

 


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