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When there is an intervention order against you Factsheet

When there is an intervention order against you Factsheet PDF 258 kB

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This information is general and is not a substitute for legal advice. The Legal Services Commission provides free advice for most legal problems. Contact the Legal Help Line on 1300 366 424. www.lsc.sa.gov.au www.lawhandbook.sa.gov.au

What is an intervention order?

An intervention order (previously known as a restraining order) is an order made by a police officer or magistrate which restricts how you can behave towards another person. You are called a defendant and the other person is called a protected person in the order.

The police officer or magistrate decides the conditions which will apply in your particular case. Intervention orders can say that you must not assault, threaten, harass, or intimidate the protected person. They can also go further and say that you must not contact the protected person (including in person or by telephone or any electronic means), and not go near their home or workplace. You may even be ordered to move out of premises you own or rent. The order can prevent you from damaging or taking property, or require you to return or allow access to property. It will also prevent you from having firearms or holding a firearms licence.

When can an order be made against me?

An intervention order may be made if it is reasonable to suspect that you will, without an intervention order, commit an act of abuse against the protected person and the issuing of the order is appropriate in the circumstances.

An act of abuse is defined broadly and can include any act that is intended to cause a protected person:

  • physical injury, or
  • emotional or psychological harm, such as distress, anxiety or fear, (that is more than trivial), or
  • the unreasonable denial of financial, social or personal autonomy, or
  • damage to their property.

Any child who may hear or witness, or be exposed to the effects of an act of abuse committed by you against the other person may also be protected by an intervention order. Abuse can include indirect abuse. For example, telling someone you might harm the protected person.

Police-issued orders

If the police attend an incident and they suspect you have committed or will commit an act of abuse, then they can issue an interim intervention order on the spot. They may do this even if the protected person does not want them to and they may require you to stay with them while they prepare the order. If they suspect that you will not follow this requirement they may arrest and detain you for up to two hours. The order will come into force immediately after it is given to you. It will require you to appear in court at a specified place and time (usually within eight days) for a court hearing. If an interim order is made against you, you must comply with all of the conditions set out in the order.

Questioning by the police

if at any time the police suspect you may have committed an offence, they may ask you to assist with their inquiries. You can be required to provide your personal details to them (including your name, address and date of birth). You can also be required to answer some police questions about your identity, if you are the driver of a motor vehicle, and the motor vehicle owner's identity, and about firearms. However, you do not have to answer any other police questions, for example, questions about what happened between you and the protected person. It is entirely your decision whether to answer these police questions or not. If you deny the conduct alleged against you, you may wish to tell the police this at the outset. Just remember that you have the right to silence and anything that you say to the police may be recorded and brought up later in evidence. There is no such thing as an 'off the record' conversation with a police officer.

If the police charge you with an offence, you should get legal advice.

Court-issued orders

A person, or the police on behalf of a person, may also apply directly to the court for an intervention order. If they apply directly to the court for an intervention order, the court can make an interim intervention order at a preliminary hearing. You are not involved in the preliminary hearing. The magistrate can make an interim order based on the evidence presented to the court. However, the order does not come into force until you get a copy of the order. The order will tell you when to come to court for a hearing, so that the court can hear from you. This is usually within eight days.

The court may also issue an intervention order upon finding you guilty or sentencing you for a related criminal offence against the protected person, such as assault. In these cases, a final intervention order is issued and there are no further hearings in relation to the order.

Does an intervention order give me a criminal record?

No. You are not being charged with breaking the law. An intervention order is a court order restricting how you can behave towards the protected person. However, once an intervention order is made, it is a crime to disobey an order. Disobeying the order is called contravening the order. The police can arrest and charge you with contravening the order. Serious penalties may apply, including up to four years imprisonment.

If you undertake child-related work or work with people with disabilities, an intervention order may be assessed as part of your work clearance, but may or may not affect the outcome.

What happens at your first intervention order hearing?

At the hearing you will have the chance to tell the magistrate whether you want to dispute the order or any of its conditions.

If you are unsure how the order might affect you and whether you want to dispute it, you can ask for an adjournment (that is, to move the hearing to a later date) to allow you time to get legal advice. Be aware that the court will usually only allow one adjournment. At this hearing, the court may:

  • dismiss the application and end the interim order
  • change the conditions of the interim order and make it final
  • confirm the conditions of the interim order and make it final
  • continue an interim order and set a date for a pre-trial conference (See 'How do I dispute the order?')

If you are, or were, in a domestic relationship with the protected person, the magistrate is likely to consider referring you to an intervention program. This can become a condition of your intervention order. See 'What else can be ordered?'

How to present yourself to the court

Dress as neatly as possible. Turn your mobile telephone off or put it into silent mode.

Even though the matter may be stressful for you, do your best to stay calm and courteous at all times. Address the magistrate as "Your Honour" or "Sir/Madam". The magistrate will ask you whether you want to dispute the order and whether there is anything else you wish to say. Remember that anything that you say in the courtroom will be recorded on the court transcript and may be referred to later on.

What happens if I don't go to court?

If you do not attend the hearing, the magistrate may confirm the interim order and make it final in your absence. Orders made in your absence are difficult to change. You should get legal advice before agreeing to an intervention order, in case it affects you in ways you are not aware of. If you do not want to dispute the order or any of its conditions, and the court hearing is only for the intervention order, then you do not have to go to court. You will not be arrested for failing to attend court.

What can I do if the proposed order is unreasonable?

The purpose of the order is to keep the protected person safe. If the magistrate forms the view that it is necessary to restrict your activities to achieve this, then the magistrate will do so. However, if you think the order will create unreasonable restrictions on your activities that are not necessary for the protected person's safety, you should explain this to the magistrate. For example, if the conditions of the order will stop you earning your living or doing other legitimate and necessary things. You might want to suggest ways the order could be changed to solve the problem without affecting the protected person's safety.

Agreeing to an order without admission

You can agree to the order even if you do not admit to the allegations made against you in the application. You may not wish to dispute the order itself if you have no particular need to see the protected person or go to places where the protected person might be. However, before agreeing to an order and allowing it to be made final, be sure to get legal advice. A final intervention order:

  • is ongoing (it has no end date),
  • is difficult to change, and
  • disobeying the order is a criminal offence.

An order may also affect you in ways that you are not aware of. For example,m an intervention order may make it more difficult to get parenting orders from the Family Law Courts.

How do I dispute the order?

The only way to dispute the order is to attend the court hearing and tell the magistrate that you want to dispute it.

The magistrate will then set a date for a pre-trial conference. Make sure you get legal advice before the pre-trial conference.

The pre-trial conference is a further opportunity:

  • for the person of the police to give you their evidence
  • to say whether you want to dispute the order in any way, or
  • to reach an agreement if possible

If an agreement cannot be reached at the conference, the matter will have to be set for trial. You will now need to give some thought to any witnesses you might wish to call to give evidence because this will inform the suitability of the trial dates and its length.

The protected person's evidence

The evidence of the protected person will often have been presented at the preliminary hearing in writing (in an affidavit) and/or in person in court. A police application may also be supported by recorded evidence. If you are not given a copy, you should ask for a copy of the protected person's affidavit and/or the transcript of the protected person's evidence. You can also ask for access to any recorded evidence. Challenging the evidence given by the protected person usually involves 'cross-examining' them, that is, asking them questions about the evidence they have given. In relation to recorded evidence you or your lawyer will need to ask the court for permission to cross-examine the protected person. If you have a lawyer representing you at trial, your lawyer will cross-examine the protected person.

If you do not have a lawyer, you are not able to ask the protected person questions directly. You must work out what questions you want to ask and give them to the magistrate, who will then decide which questions are 'allowable' (because, unlike a lawyer, you cannot be expected to know what is OK to ask). The magistrate or another person nominated by the magistrate will then ask the questions for you.

Do I need a lawyer?

You can have a lawyer to handle the case for you if you wish. Legal aid is not granted for intervention order cases, because they are not criminal matters. Some community legal centres may be able to provide representation. See www.clcsa.org.au

Names of private lawyers who do this type of work can also be obtained from the Law Society (Tel: 8229 0200). Charges will vary and you should ask about the cost when making the appointment or at the first interview.

You do not need to have a lawyer if you do not want one. Often, people represent themselves in these cases. Even if you represent yourself, you should get legal advice, either from the Legal Services Commission, a community legal centre, or a private lawyer.

Can the order stop me from going to my own home?

Yes, an order can stop you from going to premises you own or rent, to the place where you normally live, or anywhere else.

If your personal possessions are still in the home, you can ask the magistrate to make an order about their return or collection. Do not rely on a friend or family member to collect your possessions and bring them to you unless the magistrate has specifically allowed this, because some orders include conditions to prevent this.

An intervention order does not change who owns the home, it only stops you from going there. When a relationship has broken down, the Family Law Courts can share out the property; you should get legal advice about this.

Similarly an order does not change a tenancy agreement. However, the protected person may apply to the South Australian Civil and Administrative Tribunal (SACAT) to change the tenancy, including removing your name from the tenancy agreement.

What about contact with my children?

If there are no parenting orders, you can ask the magistrate to consider the children's need to see you in deciding the conditions of the order. An order can be made which allows some kind of contact between you and the protected person about children's arrangements (it may be through another person), and/or allows you to attend counselling or family dispute resolution together.

If your children are living with the protected person, then the order may stop you from spending time with them. If possible, the order should be designed to take the children's need to see you into account. If there are parenting orders in place, the magistrate must take these orders into account. However, when making an interim intervention order, the magistrate may temporarily change or stop an existing parenting order. When making a final intervention order, a magistrate may change a parenting order, but only if there is evidence that was not presented to the Family Law Courts at the time it made the original order.

If you think the final intervention order does not make adequate arrangements for parenting your children you may apply to a parenting order from the Family Law Courts. You should not try to contact the children if the intervention order stops you. Disobeying the intervention order is a crime with serious penalties. Disobeying the order could also have a negative effect on a parenting application. If you need a parenting order from the Family Law Courts, you should get legal advice about this without delay, especially if you were having regular contact with the children before. Once you have a parenting order from the Family Law Courts, this overrides the intervention order where it is inconsistent.

What else can be ordered?

Every interim intervention order must require the defendant to give up any firearms and firearms licence, and disqualify them from having firearms. If you need a firearm as part of your job, you should get legal advice before the order is made final.

A magistrate may order you to be assessed for and undertake an intervention program. An intervention program can provide for supervised treatment, rehabilitation, behaviour management and/or access to relevant support services. This may help you with your relationships. If you perform well in the program, it may also help at sentencing if you have been charged with a related criminal offence against the protected person, such as assault.

If the court, when making a final intervention order, believes there is a reasonable likelihood of harm to family members because of your gambling it may issue a problem gambling order in addition to the intervention order.

Can I appeal against the order?

Once a magistrate has made an order, you can appeal it, but you will need to be granted permission to appeal first. You can lodge a request for permission to appeal (together with the appeal itself) to the Supreme Court within 21 days. It is a good idea to get legal advice before doing so, because you may have to pay legal costs to the other side if you lose. The order still applies while the appeal is being decided.

How long does the order last?

A final intervention order is ongoing and continues in force until it is changed or stopped.

Can I apply to change or stop the order later on?

You have to wait at least 12 months after the order was issued to apply to change or stop it. The court can also set a longer time you have to wait. If you apply, the application will only be successful if you can prove there has been a substantial change since the order was made. You do this by completing an application form at the court and making a sworn written statement about the changed situation. A time will be made for a hearing. You will need to convince the court that the order can be changed without risk to the protected person. Both the police and the protected person will be given an opportunity to have their say as well.

Does the order apply interstate?

Intervention orders issued in South Australia (arising from domestic violence) are usually declared to be recognised and enforceable nationwide. The same applies to intervention orders issued in other States.

What if the protected person changes their mind?

A protected person may change their mind and want an order that previously allowed you to have contact to allow no further contact, or an order that did not allow contact to allow you to have contact, or be stopped altogether, so that you can resume a relationship.

Even if the protected person wants to contact you, you must not disobey the intervention order before it has been changed, because this is a crime with serious penalties, including imprisonment. The fact that the protected person agreed to disobey it does not matter. If the protected person invites you around or does anything else to encourage you to disobey the order, you must refuse to speak to them and keep away to avoid a criminal charge for contravening the order. You can keep a record of the protected person's invitations and/or actions and report them to the police, who may then remind the protected person of the conditions of the order.

If the protected person wants to change an intervention order, they can apply to the court to do so at any time. They can ask the police to help with this. The police can apply for an interim change to an intervention order at a preliminary hearing, at which you are not present. However, the change does not come into force until you get a copy of the changed order. You may then attend a court hearing (usually within 8 days) if you wish to dispute the change.

If the police do not make the application, a copy of the application must be given to you before it is heard by the court, and you have the opportunity to be present at the first hearing.

The final decision whether to change an order is made by the court, after hearing the evidence.

26 November 2019