31Procedure in relation to hearing and determining applications

### 31 Procedure in relation to hearing and determining applications > > (1)  Except as otherwise provided by this Act or ordered by a court – > > > > > > (a) an application under [Part 3](#HP3@EN) or [4](#HP4@EN) is to be heard and determined – > > > > > > > > > > (i) in open court; and > > > > > > > > > > > (ii) in the same manner, as nearly as practicable, as a complaint for a simple offence; and > > > > > > > (b) a person who makes an application under [Part 3](#HP3@EN) or [4](#HP4@EN) is to be treated, as nearly as practicable, as a complainant. > > > (2)  At the hearing of an application under [Part 3](#HP3@EN) or [4](#HP4@EN) , the following persons may conduct the applicant's or respondent's case and examine and cross-examine witnesses: > > > > > > (a) the applicant or respondent; > > > > > > > (b) [*\[Section 31 Subsection (2) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008\]*](/view/html/inforce/2008-12-31/act-2007-066#JS1@Ja34@GC1@Hpa@EN) an Australian legal practitioner representing the applicant or respondent; > > > > > > > (c) a police officer representing the applicant or respondent; > > > > > > > (d) any other person to whom the court grants leave for that purpose. > > > (2A)  [*\[Section 31 Subsection (2A) inserted by No. 63 of 2005, s. 4, Applied:09 Dec 2005\]*](/view/html/inforce/2005-12-09/act-2005-063#GS4@EN) At the hearing of an application made by a person other than a police officer – > > > > > > (a) under [Part 3](#HP3@EN) ; or > > > > > > > (b) under [Part 4](#HP4@EN) , in respect of an FVO which was made on the application of a police officer – > > > > > > the Commissioner of Police – > > > > > > > (c) is taken to be a party; and > > > > > > > (d) may make submissions for or against the application; and > > > > > > > (e) may examine and cross-examine witnesses. > > > (2B)  [*\[Section 31 Subsection (2B) inserted by No. 26 of 2018, s. 11, Applied:10 Dec 2018\]*](/view/html/inforce/2018-12-10/act-2018-026#GS11@EN) Despite this section, [section 8A of the](/view/html/inforce/2026-04-12/act-2001-079#GS8A@EN) [Evidence (Children and Special Witnesses) Act 2001](/view/html/inforce/2026-04-12/act-2001-079) applies in respect of the cross-examination of a witness who is the alleged victim of any prescribed proceeding, as defined in that Act, for a family violence offence to which an application under [Part 3](#HP3@EN) or [4](#HP4@EN) relates. > > > (3)  [*\[Section 31 Subsection (3) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008\]*](/view/html/inforce/2008-12-31/act-2007-066#JS1@Ja34@GC1@Hpb@EN) If the applicant is a child, he or she must be represented by a police officer, an Australian legal practitioner or a nominee of the Secretary of the responsible Department in relation to the [Children, Young Persons and Their Families Act 1997](/view/html/inforce/2026-04-12/act-1997-028) . > > > (4)  If a police officer could, if available as a witness, give direct oral evidence of a fact in his or her professional capacity in the hearing of an application under [Part 3](#HP3@EN) or [4](#HP4@EN) , the statutory declaration of the police officer in relation to that fact and made in support of the application is, subject to [subsection (5)](#GS31@Gs5@EN) , admissible as evidence of the fact in the hearing, notwithstanding that the police officer may be available as a witness. > > > (5)  A statutory declaration referred to in [subsection (4)](#GS31@Gs4@EN) is not admissible as evidence in the hearing of an application under [Part 3](#HP3@EN) or [4](#HP4@EN) if the court, having regard to all the circumstances, is of the opinion that the representation in the statutory declaration ought not to be admitted without being tested by cross-examination. > > > (6)  [*\[Section 31 Subsection (6) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010\]*](/view/html/inforce/2010-07-01/act-2010-003#JS1@Ja22@GC1@EN) The representation of a medical practitioner in a document tending to establish a fact is admissible as evidence of the fact in the hearing of an application under [Part 3](#HP3@EN) or [4](#HP4@EN) , notwithstanding that the medical practitioner may be available as a witness, if– > > > > > > (a) the medical practitioner, in his or her professional capacity, could give direct oral evidence of the fact in the hearing; and > > > > > > > (b) the court, having regard to all the circumstances, is of the opinion that justice does not require that the representation be tested by cross-examination. > > > (7)  If the court hearing an application under [Part 3](#HP3@EN) or [4](#HP4@EN) is satisfied that – > > > > > > (a) a sealed copy of the application has been served on the respondent to the application; or > > > > > > > (b) reasonable attempts have been made to serve a sealed copy of the application on the respondent – > > > > > > the court may proceed in the absence of the respondent and may – > > > > > > > (c) make the FVO sought in the application or such other order as the court considers necessary; or > > > > > > > (d) issue a warrant for the arrest of the respondent. > > > (8)  At any time in proceedings under [Part 3](#HP3@EN) or [4](#HP4@EN) , the court may determine that it is appropriate that those proceedings be heard and determined by the Magistrates Court (Youth Justice Division) or the Magistrates Court (Children's Division) and may transfer the proceedings to that court. > > > (9)  If proceedings are transferred to the Magistrates Court (Youth Justice Division) or the Magistrates Court (Children's Division) under [subsection (8)](#GS31@Gs8@EN) , that court has jurisdiction to hear and determine those proceedings.