Justices Amendment (Family Violence) Rules 2005
The Magistrates Rule Committee, in the exercise of its powers under section 15AE of the Magistrates Court Act 1987 , makes the following rules of court for courts of summary jurisdiction exercising jurisdiction under the Justices Act 1959 .
These rules of court may be cited as the Justices Amendment (Family Violence) Rules 2005 .
These rules of court take effect on 30 March 2005.
In these rules of court, the Justices Rules 2003 are referred to as the Principal Rules.
4. Part 9B inserted
After rule 54I of the Principal Rules , the following Part is inserted:PART 9B - Practice and procedures under Family Violence Act 2004Division 1 - Interpretation(1) In this Part –application means an application for an order made under Part 3 or Part 4 of the Family Violence Act 2004 ;EFVO means an external family violence order within the meaning of the Family Violence Act 2004 ;electronic copy means a copy of a document made by facsimile or electronic transmission;endorsed copy means –(a) a copy of an order or application, which contains an endorsement of service; or(b) a facsimile copy of the copy referred to in paragraph (a) ;order means an order made under Part 3 or Part 4 of the Family Violence Act 2004 and includes any conditions contained in the order.(2) Unless the contrary intention appears, an expression used in this Part has the same meaning as it has in Part 1 of the Family Violence Act 2004 .Division 2 - Applications(1) This Division applies to an application for –(a) an FVO; and(b) a variation to, or extension or revocation of, an FVO or PFVO.(2) This Division does not apply to an application for the registration of an EFVO, unless otherwise specified.An application is to –(a) specify the order sought; and(b) contain an affidavit of the applicant that to the best of his or her knowledge and belief the information contained in the application is true; and(c) be filed with the clerk.54M. Electronic filing of applications
Where an application is filed by a person, firm, corporation or government agency approved under rule 65(2) , the person, firm, corporation or agency is to retain the original sworn application and produce it to a magistrate on request.(1) A person making an application is to, as soon as practicable after it is filed with the clerk, cause a sealed copy of the application to be served personally on –(a) in the case of an application for an FVO or an application for a variation to, or extension or revocation of, an FVO, on all other parties to the application; or(b) in the case of an application for a variation to, or extension or revocation of, a PFVO, on all other parties to the application and on the Commissioner of Police.(2) Where a police officer is the applicant for the revocation of an FVO or a PFVO, service of a sealed copy of the application is not required.(3) A person who serves a sealed copy of an application is to –(a) endorse a copy of the application with a memorandum stating the day, place and mode of service; and(b) sign the memorandum; and(c) as soon as practicable, cause the endorsed copy to be lodged with the clerk for the district in which it is returnable.A respondent to an application who wishes to oppose the application must –(a) as soon as practicable and before the return date of the application, file with the clerk an affidavit setting out the grounds of his or her opposition; and(b) cause the affidavit to be served personally on all the other parties to the application as soon as practicable after filing it; and(c) after it has been served –(i) endorse a copy of the application with a memorandum stating the day, place and mode of service; and(ii) cause the person who served the affidavit to sign the memorandum; and(iii) as soon as practicable, cause the endorsed copy to be lodged with the clerk for the district in which it is returnable.(1) At the hearing of an application under this Part, evidence may be given by affidavit.(2) A person who makes an affidavit for the purposes of subrule (1) is not required to attend the hearing of the application unless a party to the proceedings, or the justice, so requires.(3) By notice in writing given to the person who made an affidavit for the purposes of subrule (1) , a party to the proceedings may require that the person attend the hearing for cross-examination and, if the person fails to attend, the court may –(a) refuse to allow the affidavit to be used; or(b) allow the affidavit to be used on any conditions the court thinks fit; or(c) adjourn the proceedings until the person attends for cross-examination.(4) Notice under subrule (3) is to be given not less than 10 clear working days before the proceedings.Division 3 - Miscellaneous(1) If an FVO or interim FVO is made, varied or extended a copy of the order as made, varied or extended is to be served personally on the respondent as soon as practicable after it is made, varied or extended.(2) The court may order that an FVO or an interim FVO be served personally by a police officer.(3) If an FVO or interim FVO is made, the clerk must forward a copy of the order –(a) to the Commissioner of Police; and(b) to the person who made the application for the order; and(c) if the person who made the application is not the person for whose benefit the order is made –(i) to the person for whose benefit the order is made; or(ii) if the person referred to in subparagraph (i) is a child, to his or her legal guardian.(4) If an FVO or interim FVO is varied or extended, the clerk, as soon as practicable after the order is varied or extended, is to forward a copy of the order as varied or extended –(a) to the Commissioner of Police; and(b) to the person who made the application for the variation to or extension of the order; and(c) if the person who made the application is not the person for whose benefit the order is made –(i) to the person for whose benefit the order is made; or(ii) if the person referred to in subparagraph (i) is a child, to his or her legal guardian.(5) If a registered EFVO is varied or extended, the clerk, as soon as practicable after the variation or extension is made, is to forward a copy of the order, as varied or extended, to –(a) the Commissioner of Police; and(b) the person who made the application for the variation or extension.(6) On the revocation of an FVO, an interim FVO or a registered EFVO, the clerk must notify the following persons of that revocation:(a) the Commissioner of Police;(b) all parties to the application for the order.(7) If a PFVO is varied, extended or revoked by the court, the clerk must notify the following persons of the variation, extension or revocation:(a) the Commissioner of Police;(b) all parties to the application for the order.(8) If an FVO, an interim FVO or a PFVO, including any such order as varied or extended, is served on the person against whom the order is made, the person who served the order is to –(a) endorse on the copy of the order a memorandum stating that the order has been served; and(b) sign the memorandum and specify the date on which the order was served; and(c) forward a copy of the endorsed copy to the clerk.(9) On receipt of the copy of the order endorsed in accordance with subrule (8)(a) , the clerk is to notify the fact that the order has been served and the date on which it was served to –(a) the applicant for the order or its variation or extension; and(b) the person for whose benefit the order was made if that person was not also the applicant; and(c) the Commissioner of Police.(10) Evidence of service of a sealed copy of an application under rule 54N may be provided by –(a) the sworn evidence of the person serving it; or(b) the endorsed copy.(11) An endorsement of service or an electronic copy of an endorsement of service is evidence, until the contrary is shown –(a) that the endorsement was signed by the person whose signature it purports to be; and(b) that the statements contained in the endorsement are true.54R. Provisions in respect of children
(1) Where a child is an affected child or a party to an FVO or interim FVO, including a PFVO that is varied, extended or revoked by the court, the clerk is to notify the Secretary of the responsible Department in relation the Children, Young Persons and Their Families Act 1997 –(a) of the current status of the order; and(b) where applicable, when service of the order has been effected.(2) Notification for the purposes of subrule (1) may be by transmission of an electronic copy of the order.54S. Power of justices to dispense with Part
Justices may, upon such terms and conditions as they think necessary, dispense with the need for a party to proceedings under Part 4 of the Family Violence Act 2004 to comply with any provision of this Part.The court, when constituted by one or more justices (one of whom is not a magistrate), may only exercise the jurisdiction conferred by sections 12 and 23 of the Family Violence Act 2004 .
5. Rule 65 amended (Electronic documents and records of information)
Rule 65(2) of the Principal Rules is amended by inserting ", firm, corporation or government agency" after "person".
These rules of court were made by the Magistrates Rule Committee at a meeting held on 21 March 2005.
A. G. SHOTT
Chief Magistrate
ZYGMUT SZRAMKA
Deputy Chief Magistrate
SAM MOLLARD
Member
IAN MATTERSON
Member
ROGER WILLEE
Member
HELEN WOOD
Member
T. J. HILL
Member
M. C. RAPLEY
Member
W. M. GRIFFITHS
Member
Displayed and numbered in accordance with the Rules Publication Act 1953.
Notified in the Gazette on 30 March 2005
These rules of court are administered in the Department of Justice.
EXPLANATORY NOTE
(This note is not part of the rule)
These rules of court amend the Justices Rules 2003 by setting out practices and procedures for the purposes of the Family Violence Act 2004 in respect of –(a) the making, service and hearing of applications for orders under that Act; and(b) the service of those orders; and(c) other related matters.