What if application for the wrong order is decided?
19 What if application for the wrong order is decided?
This section applies if—
a person applies for a protection order under this Act; and
the order cannot be validly made because the conduct on which the application is based is not conduct that the order could restrain; and
the application is decided before it becomes apparent that paragraph (b) applies; and
a protection order under this Act is purportedly made (the invalid order); and
had an application been properly made, the court could have made a protection order under the Personal Violence Act 2016 of the same kind as the invalid order.
Example—when this section does not apply because of par (e)
A police officer applied for an after-hours order. The conduct relied on was, in fact, personal violence under the Personal Violence Act 2016. This section does not apply because there is no equivalent order to an after-hours order under the Personal Violence Act 2016.
The invalid order is taken to be an order properly applied for and validly made under the Personal Violence Act 2016.
Example
An interim order is made under this Act. In the proceeding to decide the application for a final order the court decides that the protected person is not a family member of the respondent. The court is satisfied, however, that the respondent’s conduct in relation to the affected person is personal violence under the Personal Violence Act 2016. The interim order made under this Act is taken to be an interim order validly made under the Personal Violence Act 2016.
This section does not apply to a consent order under this Act.
A consent order may be made whether or not any ground for making the order has been made out (see s 33 (2) (b)).
Division 3.3 Interim orders
Subdivision 3.3.1A Seeking interim orders
This Act’s bill:Explanatory statementSecond reading speech
The statute text is free to read above. View subscription options to unlock the case-law research tools for each provision.