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Intervention Orders in South Australia
Intervention orders (previously known as Restraining Orders in South Australia) may be sought to prevent either domestic abuse or non-domestic abuse. Intervention orders operate such that a person is restrained from behaving in a particular manner towards a protected person or persons, and make it an offence for a person to breach those restraints. The intention of the order is to stop future violence or intimidation. An application can be made to the police or to the Magistrates Court of South Australia.
If a person is under the age of 14, then a parent or other adult representative must apply on their behalf. Based on that application, an interim Intervention Order can be made by the police or by the court. The law that covers Intervention Orders in South Australia is the Intervention Orders (Prevention of Abuse) Act 2009 (“the Act”). In other states an Intervention Order is called an Apprehended Violence Order or a Restraining Order.
An order made in another state can be registered in the Magistrates Court and enforced in South Australia.
When applications for an Intervention Order can be made
The South Australian police are able to issue an Interim Intervention Order if the defendant is with the police at the time of making the order or is in custody, and the police believe there are grounds for issuing an Interim Intervention Order. The order protects the victim from the time that the defendant is served personally with the Order. If the police do not grant an Intervention Order, then an application can be made to the Magistrates Court. At the preliminary hearing (the first hearing) a magistrate will decide if it is reasonable to suspect that the defendant will commit an act of abuse, and if so will grant an interim order. The matter will be adjourned for a final determination to be made.
Interim Intervention Orders
The interim Intervention Order will give a date for the defendant to appear in court (this is usually within 8 days) for a hearing to determine the application for the Intervention Order (which hearing is sometimes referred to as a “determination hearing”). If the defendant fails to show up at the hearing, the order will be made final unless the defendant has not been served with the application. Otherwise, the court can confirm the interim order already in place and make it final, make an order in changed terms, or dismiss the application and end the interim order. If the defendant wants to contest the application the court will set another date for hearing the evidence.
Determination of the Application
In a situation involving allegations of domestic abuse and where the application is contested by the person being restrained by the order, there are procedures to make sure that matter is dealt with as soon as possible. In most cases there will only be one adjournment to hear evidence. A pre-trial conference will be ordered. If the matter is not resolved at that conference, then a date must be set for the hearing. The South Australian Courts can make orders for the protection of the victim or any child when they are giving evidence. This can be by directing that the evidence is to be given by closed circuit television or from behind a screen (or in some other way) and that the defendant not be present during the giving of their evidence. The defendant is not able to ask questions directly of the victim or any child. If the defendant does not have a lawyer, then they must prepare a list if the questions they wish to ask and give them to the Court and the Court will decide which questions to allow. The questions are then asked someone nominated by the court.
If the interim order is confirmed or an order is made by the Court after a contested hearing then the Interim Order becomes an ongoing Intervention Order. An Intervention Order can include terms for the protection of the victim and their property, orders preventing the defendant owning a firearm and other terms including requiring participation in an Abuse Prevention Program. The Order may also fix a date after which the defendant can apply to change or revoke the order (but not earlier than 12 months from the date of making the order). The order will remain in force until any application to change or revoke it is made and granted.
Ongoing Intervention Orders
In South Australia, an Intervention Order is not a criminal conviction. However, if a defendant breaches a term of the Intervention Order, then unless there is a valid defence, it is possible that they might be found guilty of a criminal offence for which they could receive a penalty of up to two years in prison. If the term breached is a term requiring the defendant to take part in or be assessed for an Intervention Program, then the penalty is a fine of $1,250.00 and an expiation fee of $160.00.
Breaching an Intervention Order
An application can be made by someone if they have been or are being abused, harassed (including by texts or social media), intimidated, hurt or threatened, or if they have had property damaged or are being stalked. Abuse includes not only physical abuse but sexual abuse, economic abuse (such as imposing unreasonable financial controls), psychological or emotional abuse such as obsessive or jealous behaviour. An application can also be made for a child if there are suspicions that the child will either be exposed to the effects of abuse or may himself or herself be subjected to abuse. The Act at section 8 contains an extensive (but not exhaustive) list of acts which constitute abuse.