Part 4 Apprehended domestic violence orders

15   Application for making of apprehended domestic violence order by court

(1)  An application may be made in accordance with Part 10 for an apprehended domestic violence order for the protection of:

(a)  a person against another person with whom he or she has or has had a domestic relationship, or

(b)  two or more persons against another person with whom at least one of those persons has or has had a domestic relationship.

(2)  An application is to be treated as an application for an apprehended personal violence order if none of the persons for whose protection the order would be made has or has had a domestic relationship with the person against whom it is sought.

16   Court may make apprehended domestic violence order

(1)  A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears:

(a)  the commission by the other person of a personal violence offence against the person, or

(b)  the engagement of the other person in conduct in which the other person:

(i)  intimidates the person or a person with whom the person has a domestic relationship, or

(ii)  stalks the person,

      being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

(2)  Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if:

(a)  the person is a child, or

(b)  the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function, or

(c)  in the opinion of the court:

(i)  the person has been subjected at any time to conduct by the defendant amounting to a personal violence offence, and

(ii)  there is a reasonable likelihood that the defendant may commit a personal violence offence against the person, and

(iii)  the making of the order is necessary in the circumstances to protect the person from further violence.

(3)  For the purposes of this section, conduct may amount to intimidation of a person even though:

(a)  it does not involve actual or threatened violence to the person, or

(b)  it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person.

Note. Part 8 provides for the matters that may be included in orders. Part 9 contains additional provisions relevant to the making of orders.

17   Matters to be considered by court

(1)  In deciding whether or not to make an apprehended domestic violence order, the court must consider the safety and protection of the protected person and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order.

(2)  Without limiting subsection (1), in deciding whether or not to make an apprehended domestic violence order, the court is to consider:

(a)  in the case of an order that would prohibit or restrict access to the defendant’s residence—the effects and consequences on the safety and protection of the protected person and any children living or ordinarily living at the residence if an order prohibiting or restricting access to the residence is not made, and

(b)  any hardship that may be caused by making or not making the order, particularly to the protected person and any children, and

(c)  the accommodation needs of all relevant parties, in particular the protected person and any children, and

(d)  any other relevant matter.

(3)  When making an apprehended domestic violence order, the court is to ensure that the order imposes only those prohibitions and restrictions on the defendant that, in the opinion of the court, are necessary for the safety and protection of the protected person, and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order, and the protected person’s property.

(4)  If an application is made for an apprehended domestic violence order that prohibits or restricts access by the defendant to any premises or place and the court hearing proceedings in respect of the application decides to make an order without the prohibition or restriction sought, the court is to give reasons for that decision.