41Making a court security order

41 Making a court security order

Making the order (1) A member of the Federal Circuit and Family Court of Australia (Division 1), the Federal Circuit and Family Court of Australia (Division 2) or the Family Court of Western Australia may, on application under section 42, make an order prohibiting (absolutely or conditionally) a specified person from doing a specified act for a specified period, if the member is satisfied that, unless the order is made, there is: (a) an ongoing risk of significant disruption of any of the following: (i) proceedings of the member’s court; (ii) administration of the member’s court; (iii) lawful activities on court premises of the member’s court; or (b) a risk of violence (to person or property) affecting one or more of the following: (i) the member’s court; (ii) a member or official of the member’s court; (iii) a person on court premises of the member’s court.

Note 1: For interim orders, see section 43.

Note 2: For variation or revocation of an order, see section 45.

Note 3: For appeals from the making of an order, see section 39 of the Federal Circuit and Family Court of Australia Act 2021 and Division 2 of Part III of the Federal Court of Australia Act 1976.

Content of the order (2) Examples of the acts that may be specified in the order include the following: (a) entering specified court premises of the member’s court; (b) coming within a specified distance of specified court premises of the member’s court; (c) contacting, harassing or intimidating a person on specified court premises of the member’s court or a member or official of the member’s court; (d) damaging property on specified court premises of the member’s court; (e) arranging for a person to do an act described in paragraph (c) or (d). (3) The order must not prevent the specified person from conducting legitimate business the person has on court premises. (4) Some examples of legitimate business a person has on court premises are: (a) filing or viewing documents relating to proceedings or proposed proceedings to which the person is or is proposed to be a party; and (b) attending a hearing of proceedings to which the person is a party or in which the person is appearing as a witness (whether or not there is an order of a court requiring the person to attend). This subsection does not limit what legitimate business a person may have on court premises. Considerations in making the order (5) In deciding whether to make an order under subsection (1) and the terms of such an order, the member must consider the following: (a) the objects of this Act; (b) any hardship that may be caused to anyone by the making of the order; (c) any previous violence (to person or property) by the person to be specified in the order; (d) any order made under a law of the Commonwealth, a State, a Territory or New Zealand to protect a person or property from violence by the person to be specified in the order under subsection (1); (e) any contravention of an order described in paragraph (d); (f) the need to ensure that persons and property on court premises are protected; (g) how to achieve the objects of this Act and reduce to an acceptable level the risks described in subsection (1) while minimising restrictions on the rights and liberties of the person to be specified in the order; (h) arrangements for security and safety of persons and property on court premises on which the person to be specified in the order is conducting legitimate business the person has on those premises. (6) Subsection (5) does not limit the matters the member may consider. Limits on registrars and deputy registrars making orders (7) Despite subsection (1), a registrar or deputy registrar cannot make a court security order unless he or she is: (a) the Principal Registrar, or a Registrar, of the Family Court of Western Australia; and (b) a magistrate under the Magistrates Court Act 2004 (WA).