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FAMILY VIOLENCE PROTECTION AMENDMENT ACT 2014 (NO. 77 OF 2014) - SECT 8

New sections 56A to 56C inserted

After section 56 of the Family Violence Protection Act 2008 insert

        " 56A     Interim order may include condition about final order

    (1)     Subject to section 56C, if the court makes an interim order, the court may include a condition (a finalisation condition ) providing that the interim order becomes a final order, with the same conditions as the interim order, 28 days after being served on the respondent, if the court is satisfied that it would be appropriate in all of the circumstances to include the condition.

    (2)     Without limiting subsection (1), in considering whether it is appropriate to include a finalisation condition, the court must have regard to the following—

        (a)     whether there is a history of family violence;

        (b)     the existence of recognised family violence risk factors;

        (c)     the existence of—

              (i)     other proceedings between the parties under this Act; or

              (ii)     other proceedings between the affected family member and any other person or persons under this Act; or

              (iii)     other legal proceedings that may affect the conditions or operation of the family violence intervention order;

Examples

1     Proceedings relating to a child protection order.

2     Family Law Act proceedings.

3     Criminal proceedings.

        (d)     the views of the police officer or other person (if applicable) who made the application for the affected family member as to the inclusion of the finalisation condition;

    ()     whether the affected family member has obtained legal advice;

    ()     whether the giving or service of the interim order and the giving of the explanation of the interim order under section 57(1) will enable the particular affected family member and respondent to sufficiently understand the matters set out in section 57(1);

    ()     the existence of factors making it desirable that the particular respondent attend a hearing for the final order.

    (3)     If the court includes a finalisation condition, the court must specify a period for which the final order is to be in force, having regard to the matters referred to in section 97(2) and (3).

    (4)     A finalisation condition does not take effect if the respondent cannot be served personally with the interim order.

        56B     When finalisation condition ceases to have effect

    (1)     A finalisation condition ceases to have effect within the 28 day period after the interim order is served on the respondent on the first of the following occurring—

        (a)     if the respondent files a notice to contest the application for the family violence intervention order, on the filing of the notice;

        (b)     if the applicant or the protected person seeks to withdraw the application for the family violence intervention order within that period, on the filing of a written notice of withdrawal or the making of an oral application to the court for the withdrawal, whichever is applicable;

        (c)     if an application is made to vary or revoke the interim order, on the making of the application;

        (d)     if the interim order is varied by the court on its own motion, at the time the order is varied.

    (2)     If the finalisation condition ceases to have effect, the interim order continues in force until it ends in accordance with section 60.

    (3)     As soon as practicable after the finalisation condition ceases to have effect, the court must—

        (a)     ensure the application is listed as soon as practicable; and

        (b)     give notice to the parties.

        56C     Certain interim orders not to include finalisation condition

    (1)     The court must not include a finalisation condition in an interim order if—

        (a)     the court reasonably suspects that the respondent is a child; or

        (b)     the court reasonably suspects that the respondent has a cognitive impairment; or

        (c)     the court reasonably suspects that the respondent—
s. 8

              (i)     holds a firearms authority, or weapons approval or exemption; or

              (ii)     is in possession of a firearm or prohibited weapon; or

        (d)     the court is satisfied that there is a Family Law Act order in force in relation to a child of the affected family member or respondent and the interim order would be inconsistent with the Family Law Act order; or

Note

See sections 89 and 90.

        (e)     the affected family member does not consent to inclusion of a finalisation condition.

    (2)     If the court is a relevant court within the meaning of section 126, the court must not include a finalisation condition in an interim order if satisfied that, on making a final order, it may be required to make an order under section 129.

    (3)     The court must not include a finalisation condition in an interim order made under section 173.".



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