Page 3481 - Week 11 - Thursday, 24 September 2015
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or family violence setting there is nonetheless an impact on any person’s health and wellbeing when they are strangled. For that reason, it is appropriate that the police have discretion to charge a person with the new offence when they are alleged to have strangled a stranger or to charge them with an assault or an assault occasioning actual bodily harm.
Turning to the provisions for new interim domestic violence orders, another important amendment proposed in the bill will provide courts with the ability to extend interim DVOs where there are current, related criminal charges. The extension of interim DVOs will offer protection for both applicants and respondents to a DVO when there is a DVO application made with related criminal charges involving both parties. This amendment to the Domestic Violence and Protection Orders Act will mean that a court may extend the interim DVO up to the time when related criminal charges are finalised.
Section 42C of the bill details what happens to a special interim order when charges are finalised. It provides that if the Magistrates Court finalises all charges they must also decide the application for the final DVO. If the Supreme Court finalises all charges it may either decide the application for the final order as if it were the Magistrates Court or notify the Magistrates Court that the final, related charge has been decided.
The purpose of this section is to provide the court with the ability to finalise the charges and, as the court that has heard all evidence relating to charges in the criminal proceeding, use its judicial discretion to impose a final DVO with relevant conditions. This section recognises that often related charges may be finalised in the Supreme Court and these provisions allow a judge to decide an application if they choose as if they were in the Magistrates Court.
A new note is to be inserted to confirm that the relevant test for deciding a DVO proceeding is that the magistrate has to be satisfied on the balance of probabilities. This is different to the standard required in criminal proceedings which is, of course, beyond reasonable doubt. Section 42C(3) outlines that if a judge does not wish to issue a final DVO they may use their discretion to give the Magistrates Court guidance about or a direction for suitable conditions that should be considered for inclusion in the final order. If that is the case the Magistrates Court must decide the application for the final order.
Section 42C(4) states that a decision to dismiss the DVO after criminal charges have been finalised may only be made after giving the parties an opportunity to be heard. If the parties are not sufficiently prepared to present arguments before the court on the DVO hearing the matter can be adjourned for a further hearing.
The bill also provides that a respondent to a special interim order may apply to the Magistrates Court for review of the order. The order can only be revoked if the court is satisfied that the special order is no longer necessary for the protection of the people it is meant to protect. The burden of proof in relation to all questions relevant to the making or amendment of an order is the balance of probabilities.
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