Crimes (Domestic and Personal Violence) Act 2007 No 80
Current version for 28 March 2020 to date (accessed 7 August 2020 at 20:02)
Part 7
Part 7 Provisional orders
25   Application by telephone, facsimile or other communication device
(1)  A police officer may apply by telephone, facsimile or other communication device—
(a)  to an authorised officer or senior police officer for an interim apprehended domestic violence order, or
(b)  to an authorised officer for an interim apprehended personal violence order.
(2)  In this Act—
(a)  an interim apprehended domestic violence order or an interim apprehended personal violence order made on an application under this section is referred to as a provisional order, and
(b)  the police officer who applies for a provisional order is referred to as the applicant officer, and
(c)  the authorised officer or senior police officer who makes a provisional order is referred to as the issuing officer.
(3)  An application for a provisional order—
(a)  may be made at the request of the protected person or on the applicant officer’s own initiative, and
(b)  may be transmitted to the authorised officer or senior police officer by another person on behalf of the applicant officer if it is not practicable for the application to be made by the applicant officer by telephone, facsimile or other communication device directly to the authorised officer or senior police officer.
26   When application may be made
(1)  An application may be made by telephone, facsimile or other communication device if—
(a)  an incident occurs involving the person against whom the provisional order is sought to be made and the person who would be protected by the provisional order, and
(b)  a police officer has good reason to believe a provisional order needs to be made immediately to ensure the safety and protection of the person who would be protected by the provisional order or to prevent substantial damage to any property of that person.
(2)  An application may be made at any time and whether or not the court is sitting.
27   Obligation to apply for provisional order in certain circumstances
(1)  An application must be made for a provisional order if—
(a)  a police officer investigating the incident concerned suspects or believes that—
(i)  a domestic violence offence or an offence against section 13 has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, or
(ii)  an offence under section 227 (Child and young person abuse) of the Children and Young Persons (Care and Protection) Act 1998 (but only in relation to a child) has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, or
(iii)  proceedings have been commenced against a person for an offence referred to in subparagraph (i) or (ii) committed against the person for whose protection an order would be made, and
(b)  the police officer has good reason to believe an order needs to be made immediately to ensure the safety and protection of the person who would be protected by the order or to prevent substantial damage to any property of that person.
(2)  The application may be made by any police officer.
(3)  An application need not be made in the circumstances referred to in subsection (1) if an apprehended violence order is already in force against the defendant for the protection of the person concerned.
(4)  An application need not be made in the circumstances referred to in subsection (1) if the person for whose protection an order would be made is at least 16 years of age at the time of the incident and a police officer investigating the incident believes—
(a)  that the person intends to make an application for an apprehended violence order, or
(b)  that there is good reason not to make the application.
(5)  However, if the police officer investigating the incident believes that there is good reason not to make the application, the police officer must make a written record of the reason.
(6)  For the purposes of subsection (4), the reluctance of the person to make an application does not, on its own, constitute a good reason for a police officer not to make an application if the police officer reasonably believes that—
(a)  the person has been the victim of violence or there is a significant threat of violence to the person, or
(b)  the person has an intellectual disability and has no guardian.
28   Making of provisional order by authorised officer
(1)  An authorised officer to whom an application is made for a provisional order may, if satisfied that there are reasonable grounds for doing so, make the provisional order.
(2)  Section 21 (Referral of matters to mediation) applies to an authorised officer when considering whether to make a provisional order that is an interim apprehended personal violence order or after making such an order in the same way as it applies to a court.
(3)  Section 81 applies to the making of a provisional order by an authorised officer in the same way as that section applies to other orders.
28A   Making of provisional order by senior police officer
(1)  A senior police officer to whom an application is made for a provisional order may, if satisfied that there are reasonable grounds for doing so, make the provisional order.
(2)  However, a senior police officer may not make a provisional order in circumstances where he or she is the applicant officer.
(3)  The provisional order is to contain the address or facsimile number of the Police Area Commander or Police District Commander at which the defendant may serve an application for variation or revocation of the order.
29   Provisional order taken to be application for court order
(1)  A provisional order is taken, for the purposes of this Act, to be an application for an order under Part 10.
(2)  The provisional order is to contain a direction for the appearance of the defendant at a hearing of the application by an appropriate court on a date specified in the order by the issuing officer.
(3)  The specified date must be—
(a)  the next date on which the matter can be listed on a domestic violence list at the appropriate court, and
(b)  in any case, a date that is not more than 28 days after the making of the provisional order.
(4)  During the prescribed period, the reference to 28 days in subsection (3)(b) is taken to be a reference to 6 months.
(5)  In this section—
prescribed period means the period—
(a)  starting on the commencement of subsection (4), and
(b)  ending on—
(i)  the day that is 6 months after the commencement, or
(ii)  the later day, not more than 12 months after the commencement, prescribed by the regulations.
30   Recording of provisional order
(1)  The issuing officer who makes a provisional order is to inform the applicant of the terms of the order and the date and time when the order was made.
(2)  The applicant is to complete a form of order in the terms so indicated and write on it the name of the issuing officer, the date and time when the order was made and the date of the hearing of the application.
(3)  When the form of order is completed, it is taken to be a provisional order.
(4)  An issuing officer may, instead of proceeding under subsection (1), furnish the provisional order to the applicant.
(5)  An applicant who is furnished with a provisional order under subsection (4) is to include in the order the date of the hearing of the application.
31   Service
(1)  A provisional order is to be served personally on the defendant by a police officer as soon as practicable after it is made.
(2)  A provisional order is to be served personally on the protected person by a police officer as soon as practicable after it is made unless it is impractical to do so.
32   Duration
(1)  A provisional order remains in force until—
(a)  it is revoked, or
(b)  it ceases to have effect under subsection (2), or
(c)  the application for a final apprehended violence order is withdrawn or dismissed,
whichever first occurs.
(2)  If an interim court order or final apprehended violence order is made in respect of a provisional order (whether with or without variation), the provisional order ceases to have effect—
(a)  in a case where the defendant is present at court—when the interim court order or final apprehended violence order is made, or
(b)  in any other case—when the defendant is served in accordance with this Act with a copy of the interim court order or final apprehended violence order.
33   Variation or revocation of provisional order on application of police officer
(1)  A provisional order made by an authorised officer may be varied or revoked by—
(a)  the authorised officer who made it or any other authorised officer, or
(b)  any court dealing with an application for an apprehended violence order against the same defendant.
(2)  A provisional order may be varied—
(a)  by amending or deleting any prohibitions or restrictions specified in the order, or
(b)  by specifying additional prohibitions or restrictions in the order.
(3)  An application for a variation or the revocation of a provisional order under this section may be made only by a police officer.
(4)  If there is more than one protected person under a provisional order, the order may be varied or revoked in its application to all of the protected persons or in relation to any one or more of the protected persons.
(5)  Notice of the variation or revocation is to be served on the defendant, each protected person affected by the variation or revocation and the Commissioner of Police.
(6)    (Repealed)
(7)  This section does not apply to the variation or revocation of a provisional order in accordance with section 33A.
33A   Variation or revocation of provisional order on application of defendant
(1)  A provisional order made by a senior police officer may be varied or revoked on the application of the defendant by any court that deals, or is to deal, with an application for an apprehended violence order against that defendant.
(2)  Despite subsection (1), an application for variation or revocation of a provisional order must be made by a police officer if the protected person or one of the protected persons under the order is a child at the time of the application.
(3)  Sections 73(1), (2), (4) and (6), 74(1) and (2), 76(2), (4) and (5) and 77(2)–(8) apply to the variation or revocation of a provisional order under this section in the same way as they apply to the variation or revocation of a final apprehended violence order or interim court order.
(4)  In addition to the requirements of section 73(4), a provisional order is not to be varied or revoked on the application of the defendant under this section unless notice of the application has been served on the Police Area Commander or Police District Commander.
(5)  The applicant officer or another police officer is entitled to appear in proceedings for a variation or revocation of the provisional order under this section.
34   Purported renewal or continuance
(1)  A provisional order may not be renewed and a further provisional order may not be made in respect of the same incident.
(2)  If a court purports to renew or continue a provisional order—
(a)  the order is taken to be an interim court order made by the court at that time, and
(b)  further service of the order is not required.
34A   Defects in interim apprehended domestic violence orders
(1)  This section applies if a senior police officer has, in good faith, purported to make a provisional order as an interim apprehended domestic violence order but none of the persons for whose protection the order was made has or has had a domestic relationship with the person against whom the order was sought.
(2)  If a provisional order has such a defect, no action lies against any police officer or any other person merely because of that defect in respect of anything done or omitted to be done by the police officer or other person in good faith in reliance on the provisional order or any ancillary property recovery order.