Criminal Procedure Act 1921

An application for a restraining order under this section may be made to the Magistrates Court by—

a police officer; or

a child, or the guardian of a child, for the protection of whom a restraining order under this section is sought.

On the hearing of an application under this section, the Magistrates

the defendant is an adult who is, or has been, residing with a child under the age of 17 years of whom the defendant is not a guardian; and

the defendant and the child are, or have been, residing at premises other than premises in which a guardian of the child resides; and

—

the defendant or another person who resides at, or frequents, premises at which the defendant and the child reside or have resided—

has, within the preceding 10 years, been convicted of a prescribed offence; or

is, or has at any time been, subject to a restraining order under this section; or

the

sexual abuse or physical, psychological or emotional abuse or neglect; or

engaging in, or being exposed to, conduct that is an offence under Part 5 of the Controlled

the

In considering whether or not to make a restraining order under this section and in considering the terms of the restraining order, the

the degree of control or influence exerted by the defendant over the child;

the prior criminal record (if any) of the defendant;

any apparent pattern in the defendant's behaviour towards the child or other children and any apparent justification for that behaviour;

the views of the child and any guardian of the child (to the extent that they are made known to the Magistrates Court);

any other matter that the Magistrates Court considers relevant.

The

require that a copy of the application under this section be served on the child, or a guardian of the child, personally; and

issue any orders it thinks fit to ensure that the child, or a guardian of the child, is given an opportunity to be heard in relation to the application.

A restraining order under this section—

may impose such restraints on the defendant as are necessary or desirable to protect the child from any apprehended risk; and

may include any consequential or ancillary orders that the Magistrates

will expire when the child reaches the age of 17 years or, if an earlier time is specified in the order, at that earlier time.

If the Magistrates Court has made a restraining order under this section, the Magistrates Court may also, subject to any current proceedings before, or orders of, the Family Court of Australia or the Youth Court, make orders providing for the temporary placement of the child (pending, if necessary, proceedings before either of those courts)—

subject to paragraphs (b) and (c), into the custody of a guardian of the child; or

if the Magistrates Court is not satisfied that placement of the child with a guardian is in the best interests of the child, or if such a placement is not possible or appropriate—into the custody of such other person as the Magistrates Court directs; or

if the Magistrates Court is not satisfied that placement of the child with a guardian or some other person is in the best interests of the child, or if such a placement is not possible or appropriate—into the custody of the Minister (for a period not exceeding 28 days) and the care of such person as the Chief Executive, or the

If the applicant is not a police officer, and the application is not made by telephone by a person introduced by a police officer, the following provisions apply despite any other provisions of this Act:

the

in addition to the discretion whether to make an order under section 99C(2), the Magistrates Court has, subject to this subsection, a discretion to refuse to issue a summons for the appearance of the defendant and to dismiss the application;

without limiting the circumstances in which the Magistrates Court may exercise the discretion, the Magistrates Court may exercise the discretion under paragraph (b) to dismiss the application if satisfied that the application is frivolous, vexatious, without substance or has no reasonable prospect of success;

there is a presumption against exercising the discretion under paragraph (b) to dismiss the application if the application discloses allegations of—

sexual abuse; or

conduct that is an offence under Part 5 of the Controlled

if the Magistrates Court exercises the discretion under paragraph (b) to dismiss the application, it must record the reasons for doing so in writing.

In this section—

rape;

indecent assault;

incest;

an offence involving unlawful sexual intercourse;

an offence of persistent sexual abuse of a child under section 50 of the Criminal

an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal

an offence involving an act of gross indecency;

an offence involving child prostitution;

an offence involving indecency or sexual misbehaviour including an offence against Part 3 Division 11A of the Criminal

an attempt to commit, or assault with intent to commit, any of the offences referred to in the above paragraphs;

any other offence (such as homicide or abduction), if there are reasonable grounds to believe that any of the offences referred to in the above paragraphs was also committed by the same person against or in relation to the child in the course of, or as part of events surrounding, the commission of the offence;

the person was convicted of the offence; or

the person was charged with, and found guilty of, the offence but was discharged without conviction; or

a court, with the consent of the person, took the offence, of which the person had not been found guilty, into account in passing sentence on the person for another offence; or

a court has, under Part 8A Division 2 of the Criminal

the person was mentally incompetent to commit the offence; and

the objective elements of the offence were established; or

a court has, under Part 8A Division 3 of the Criminal

the person was mentally unfit to stand trial on a charge of the offence;

the objective elements of the offence were established;

a child sexual offence; or

an offence under Part 5 of the Controlled

a child sexual offence is committed against or in relation to the child; or

the child is exposed to the commission of a child sexual offence against or in relation to another child.