Commonwealth Numbered Acts

Family Law Amendment Act 1983 No. 72 of 1983 - SECT 65

65. After section 114 of the Principal Act the following sections are inserted
in Part XIV: Powers of arrest

''114AA. (1) Where, on the application of a party to a marriage (in this
sub-section referred to as the 'applicant'), a court grants an injunction of
the kind referred to in paragraph 114 (1) (a), (b) or (c), the applicant may-

   (a)  in the course of the proceedings in which the injunction is granted or
        subsequently, apply to that court for an order under this sub-section;
        or

   (b)  at any time after the injunction has been granted, apply to another
        court having jurisdiction under this Act for an order under this
        sub-section, and, where such an application is made to a court, the
        court may-

   (c)  if it is satisfied-

        (i)    that the person against whom the injunction is directed (in
               this paragraph referred to as the 'respondent') has caused
               bodily harm to the applicant or to a child of the marriage;

        (ii)   that the respondent is likely to cause bodily harm to the
               applicant or to a child of the marriage; and

        (iii)  that notice of the intention of the applicant to apply for an
               order under this sub-section has been served on the respondent
               or that, in the circumstances of the case, it is appropriate to
               make an order under this sub-section notwithstanding that such
               notice has not been served on the respondent; or

   (d)  if it is satisfied-

        (i)    that the person against whom the injunction is directed (in
               this paragraph referred to as the 'respondent') has threatened
               to cause bodily harm to the applicant or to a child of
               the marriage;

        (ii)   that the respondent is likely to cause bodily harm to the
               applicant or to a child of the marriage; and

        (iii)  that notice of the intention of the applicant to apply for an
               order under this sub-section has been served on the respondent,
by order, authorize the arrest of the respondent without warrant as provided
by the succeeding provisions of this section.

''(2) Where a court has, by order under sub-section (1), authorized the arrest
without warrant of a person against whom an injunction is directed, a police
officer may arrest the person without warrant if he believes, on reasonable
grounds, that the person has, since the order was made, breached the
injunction-

   (a)  in the case of an injunction of the kind referred to in paragraph 114
        (1) (a)-by causing bodily harm to a person for whose personal
        protection the injunction was granted; or

   (b)  in the case of an injunction of the kind referred to in paragraph 114
        (1) (b) or (c)-by entering or remaining in any premises, area or
        place.

''(3) Where a police officer arrests a person pursuant to sub-section (2)-

   (a)  he shall-

        (i)    ensure that the person is brought before the court that
               authorized the arrest, or another court having jurisdiction
               under this Act, before the expiration of the relevant period;
               and

        (ii)   take all reasonable steps to ensure that, before the person is
               so brought before a court, the person on whose application the
               order under sub-section (1) was made is aware that the
               first-mentioned person has been arrested and of the court
               before which he is to be brought; and

   (b)  the person shall not be released before the expiration of the relevant
        period except pursuant to an order of the court that authorized the
        arrest or another court having jurisdiction under this Act, but
        nothing in this sub-section authorizes the keeping of the person in
        custody after the expiration of the relevant period.

''(4) Where a person is brought before a court in accordance with sub-section
(3), the court shall-

   (a)  if there is an application before the court for the person to be dealt
        with for breach of the injunction in connection with which that court
        or another court authorized the arrest of the person without
        warrant-forthwith proceed to hear and determine that application; or

   (b)  if there is no application before the court as mentioned in paragraph
        (a)-order that the person be released forthwith.

''(5) Where-

   (a)  a person is brought before a court in accordance with sub-section (3);

   (b)  the court proceeds to hear and determine an application for the person
        to be dealt with for breach of an injunction as mentioned in paragraph
        (4) (a); and

   (c)  at the expiration of the relevant period the proceedings have not been
        determined,
the person may be kept in custody after the expiration of the relevant period
until-

   (d)  the court gives its decision on the proceedings;

   (e)  the court orders that the person be released; or

   (f)  the court adjourns the hearing for a period of more than 24 hours,
whichever happens first.

''(6) An order made by a court under sub-section (1) ceases to have effect-

   (a)  if a date, being a date not later than 6 months after the date of the
        making of the order, is specified in the order-on that date; or

   (b)  if no date is specified in the order as mentioned in paragraph (a)-at
        the expiration of the period of 6 months after the date of the making
        of the order.

''(7) In this section-

'police officer' means a member of the Australian Federal Police or a member
of the police force of a State or of the Northern Territory;

'relevant period', in relation to the arrest of a person, means-

   (a)  in a case to which paragraph (b) does not apply-the period commencing
        at the time when the person is arrested and ending 24 hours later; or

   (b)  where a Sunday or public holiday commences within the period of 24
        hours after the time when the person is arrested-the period commencing
        at the time when the person is arrested and ending 48 hours later.
Operation of State and Territory laws

''114AB. (1) Sections 114 and 114AA are not intended to exclude or limit the
operation of a prescribed law of a State or Territory that is capable of
operating concurrently with those sections.

''(2) Where a person has instituted a proceeding or taken any other action
under a prescribed law of a State or Territory in respect of a matter in
respect of which he would, but for this sub-section, have been entitled to
institute a proceeding under section 114 or 114AA, the person is not entitled
to institute a proceeding under the section concerned in respect of that
matter.

''(3) Any proceedings instituted by a person that are pending under section
114 at the commencement of this section in respect of a matter in respect of
which the person has, before that commencement, instituted a proceeding or
taken any other action under a law prescribed for the purposes of sub-section
(2) are, by force of this sub-section, terminated.''.