Commentary on Sections Domestic violence Section 28: Conditions for and contents of a domestic violence protection order
102.Section 28 details the two conditions that must be met for a DVPO to be made, as set out in subsections (2) and (3).
103.The first condition is that the court must be satisfied on the balance of probabilities that P has been violent, or threatened violence, towards an associated person, V.
104.The second condition is that the court thinks the DVPO is necessary to secure the protection of V from violence, or the threat of violence, from P.
105.Subsection (4) specifies particular matters a court must consider prior to making a DVPO, where it is made aware of these matters. These are: the welfare of any child whose interests the court considers relevant to the DVPO: the opinion of V; and, where the DVPO is to include conditions in relation to the occupation of premises shared by P and V, the opinion of any other associated person who lives in the premises.
106.It is not necessary that V consent to the order. Subsection (5) specifies that a court may issue a DVPO regardless of whether or not V consents.
107.Subsection (6) provides that a DVPO must contain provision explicitly prohibiting P from molesting V for the duration of the DVPO. As set out in subsection (7), this may include molestation in general, particular acts of molestation, or both.
108.Subsection (8) specifies that where P and V share living premises, the DVPO may explicitly: prohibit P from evicting or excluding V from the premises; prohibit P from entering the premises; require P to leave the premises; or prohibit P from coming within a certain distance of the premises (as specified in the DVPO) for the duration of the DVPO. This provision can be made irrespective of who owns the premises.
109.Subsection (9) attaches a power of arrest to the DVPO which can be exercised if a police constable has reasonable grounds for believing that P is in breach of the DVPO. In these circumstances, the constable may arrest P without warrant.
110.Subsections (10) and (11) specify the duration of the DVPO. A DVPO may be in force for a minimum of 14 days from the day on which it is made, to a maximum of 28 days from the day on which it is made. The DVPO must state the period for which it is to be in force.