Court intervention for defendants charged with criminal offences related to domestic violence are based upon feminist perspectives of power relations and gender. Court intervention focuses on the criminality of domestic violence, and the need for men to acknowledge and take responsibility for their abuse and violence. The paramount consideration is for the safety of women and children.
The Family Violence Court sits once a week in the Adelaide, Port Adelaide and Elizabeth Magistrates Courts and hears criminal matters connected to domestic violence, such as assaults on family members, and applications for intervention orders (even where the relationship has ceased). The court offers support services and protection to women and children, whilst providing defendants with an opportunity to address their violent and abusive behaviour by participating in the Abuse Prevention Intervention Program. Participation in this program can occur as a condition of bail or a bond, with ongoing supervision provided by a Community Correctional Services Officer, or pursuant to an intervention order [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 13].
Criminal offences related to domestic violence can be diverted from a general court list (including from metropolitan courts) to the Family Violence Court for an application for assessment for the program. Upon attendance at the Family Violence Court the applicant is encouraged by the Magistrate to participate in the Abuse Prevention Intervention Program. The Magistrate sitting in the Family Violence Court will consider adjourning or remanding the matter for a period of four weeks with supervised bail (by a Community Correctional Services Officer) and on condition that the defendant attend for assessment, which the defendant is expected to arrange on his or her own behalf by contacting the Clinical Assessment and Liaison Worker for the Abuse Prevention Intervention Program.
An intervention order may require the defendant to undergo an assessment to determine the form of intervention appropriate for the defendant and the defendant’s eligibility for the services included in the program [see s 13(1)]. An intervention program is defined as including: supervised treatment, or supervised rehabilitation, or supervised behavioural management, or supervised access to support services, or a combination of any one or more of these designed to address behavioural problems (including problem gambling), substance abuse or mental impairment [see s 3(1) for definition]. An intervention order may require the defendant to undertake an intervention program where the defendant is assessed as eligible for such an intervention program and services are available for the defendant [see s 13(2)]. The defendant must comply with requirements regulating his or her participation in the assessment process and a failure to comply constitutes a contravention of the term of the intervention order [see s 13(3)].
In order to be assessed as suitable for participation in the program, the defendant must acknowledge during the assessment process: their past abuse and acts of violence, that they recognise this behaviour is problematic, and a desire to address their behaviour.
Following assessment of a defendant the court is provided with a report outlining whether the defendant meets the eligibility criteria for the program and any other issues raised at assessment which need to be addressed, including mental health, substance abuse and gambling.
Once a defendant is found to be appropriate for the program, finalisation of their criminal matter(s) is delayed whilst they participate in the program as a condition of bail (or where sentencing has occurred as a condition of bond), or as a condition imposed under an intervention order [see Intervention Orders (Prevention of Abuse) Act 2009 (SA)]. Supervision is provided through a Community Correctional Services Officer.
The Magistrate sitting in the Family Violence Court may request progress reports during the adjournment period. Failure to comply with bail conditions and program requirements during this period is reported to the court and prosecution. Where the Community Correctional Services Officer finds the defendant is failing to comply with conditions of bail, they may ask the court to vary or revoke bail. SAPOL will pursue criminal charges where the behaviour involves further threats or acts of violence. In addition, where the defendant is undertaking an intervention subject to a condition in an intervention order, then that defendant must comply with all requirements regulating his or her participation in the intervention program. Failure to comply with such requirements constitutes a contravention of the term of the intervention order [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(1)].
The Family Violence Court is provided with a final report at the completion of the program. This provides evidence to the court of any behavioural and attitude changes, attendance records and any other issues which may have arisen during the defendantâs time in the program. The report will also provide a summary as to whether or not progress has been satisfactory. This report is taken into consideration when the defendant is subsequently sentenced by the court.
- When can an intervention order be made?
- What can an intervention order contain?
- Who may apply to the Court?
- The process: How is an intervention order issued?
- When do they come into force and how long do they last?
- What if the defendant breaches the intervention order?
- Intervention orders and tenancy agreements
- Are restraining orders still made?
Intervention orders aim to prevent domestic or non-domestic abuse by regulating a defendant’s behaviour towards a protected person(s). The law about intervention orders is found in the Intervention Orders (Prevention of Abuse) Act 2009 (SA) .
An intervention order is a civil matter between the police or other applicant and the defendant. It is not a criminal charge and will not therefore appear on a defendant’s antecedent report. However, once an intervention order is in force, it is a criminal offence to breach the order [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31].
Although an intervention order is not a criminal charge, jurisdiction to hear and determine them is vested in the Criminal Division of the Magistrates Court [see Magistrates Court Rules (Criminal) 1992 (SA) rule 4.07].
A police officer or Court may issue an interim intervention order against a person if they have a reasonable suspicion that a person will, without intervention, commit an act of abuse against a protected person(s) and the issuing of the order is appropriate in the circumstances [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 6].
These grounds need only be proved on the balance of probabilities [see s 28].
What is an act of abuse?
An act of abuse is any act that results in, or is intended to result in:
- physical injury; or
- damage to property; or
- emotional or psychological harm; or
- an unreasonable denial of financial, social or personal autonomy.
[see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 8 for detailed examples].
An act of abuse may be domestic or non-domestic. If a defendant is or was formerly in a relationship with the protected person(s), it is referred to as an act of domestic abuse [see s 8(8)].
Where an intervention order involving domestic abuse is contested, the matter must be set for a pre-trial conference after no more than one adjournment, and if the matter does not resolve at that pre-trial conference, it must be set for trial [see Magistrates Court (Criminal) Rules 1992 (SA) r 18.22].
In Police v Giles SASC 11, the Chief Justice confirmed an interim intervention order on an appeal against its revocation by a magistrate. Although he made findings that the defendant did in the past commit acts of abuse against the protected person both before and after their relationship came to an end [at -, he also made the following observations at -:
"First there is no requirement that the facts from which the reasonable suspicion is drawn themselves constitute an act of abuse. Secondly it is not a statutory requirement that those facts or events be recent, or have occurred before or after the breakdown of a relationship.
As to the first observation, there is no doubt that an order could be based on evidence of a statement of an intention to commit an act of abuse even if the communication was not made to the victim or, indeed, in the case, for example, of a personal diary note, to anyone else at all. As to the second observation, the temporal connection of the past event to the application is a relevant consideration, but, depending on the nature of the circumstances, an event occurring many years earlier may nonetheless found a reasonable suspicion that the defendant will commit an act of abuse. "
When is the issuing of the order appropriate?
In determining whether it is appropriate to issue an order and the terms of an order, the issuing authority must recognise and take into account:
- that abuse occurs in all areas of society;
- that abuse may be overt or subtle, isolated or patterned and involves the exploitation of power imbalances;
- the importance of preventing it and preventing children from being exposed to it;
- that it should be designed to encourage defendants to accept responsibility and take steps to avoid committing abuse and to minimise disruptions to protected persons; and
- any relevant Family Law Act or Children’s Protection Act orders;
- whether issuing the order would be counterproductive.
Any child who may hear or witness, or be exposed to the effects of an act of abuse committed by a defendant against a protected person(s) may also be protected by the order [see s 7(1)(b)].
An intervention order may impose any prohibition or requirement upon a defendant [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12].
It may prohibit the defendant from:
- approaching within a specified distance of the protected person(s);
- contacting, harassing, threatening or intimidating the protected person(s);
- from being on or near premises at which a protected person(s) resides, works or frequents;
- damaging specified property; and/or
- causing or allowing another person to engage in the behaviour listed above.
It may require the defendant to:
- surrender specified weapons or articles;
- return specified personal property to the protected person(s);
- allow a protected person(s) to recover or access specified personal property;
- undergo an assessment by the intervention program manager;
- undertake an intervention program; and/or
- meet conditions of any other particular prohibition or requirement.
An intervention order must include firearms terms. These require the defendant to surrender any firearms in their possession as well as any firearm licence or permit. While an intervention order remains in force against the defendant, he or she is disqualified from holding or obtaining a licence or permit for a firearm and prohibited from possessing a firearm in the course of his or her employment [see s 14(1)]. If the Court is satisfied that the defendant has never been guilty of violent or intimidatory conduct and needs to have a firearms for purposes relating to earning a livelihood, then the firearms terms need not be included [see s 14(2)].
Defendant’s proprietary interests
An intervention order may be issued against a defendant in relation to property despite the fact that the defendant may have a legal or equitable interest in the property [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12(5)].
If the defendant and the protected person(s) lived together in rental housing before the intervention order was made, and the defendant is a party to the rental agreement, a tenancy order can be made in addition to the intervention order. A tenancy order gives the defendant’s interest in the tenancy agreement to a specified person(s). Any bond paid by the defendant is not paid out to him or her, but continues to be held as bond for the person given the defendant’s interest [see s 25].
The landlord must be notified of a prohibition upon a defendant being at a rental property and the intention to obtain a tenanacy order using Form 38 [Magistrates Court Rules 1992 r 18.12]. An applicant must seek directions from the Court as to the service of this notice upon the landlord, existing tenants and any assignees [r 18.21].
A landlord who has been notified that a defendant is prohibited from being on rented premises , but nevertheless provides the defendant with a key to the premises or otherwise assists or permits the defendant to gain access to the premises is guilty of an offence [see s 32].
|If a defendant is prohibited from going to a home he or she rents or owns, the duty solicitor can ask the Court to make an order for the return or collection of specified items of the defendant's property from the home.|
Family Law Courts parenting orders
If there are children living with the person protected by the order, then the order may prohibit the defendant from spending time or communicating with them. If possible, the order should be designed to take the children’s need to see the defendant into account [s 10(2)]. When the police issue an interim intervention order they must advise the Court of any relevant parenting or care and protection orders at the first return date [Magistrates Court Rules 1992 r 18.01(c)].
The Court may make the intervention order subject to Family Law Courts parenting orders. However, the Court may also vary, suspend or discharge an existing parenting order provided there is material before it that was not before the Family Law Courts [see s 16 and Family Law Act 1975 s 68R].
The following persons may apply to the Court:
- a police officer;
- any person (adult or child) against whom it is alleged the defendant may commit an act of abuse or their suitable representative with the permission of the Court;
- any child who it is alleged may hear or witness, or be exposed to the effects of an act of abuse committed by a defendant against a protected person(s); and
- if the defendant or protected person is a child, and there is a State child protection order in force in respect of the child -the Minister responsible for the administration of the Children and Young People Safety Act 2017 (SA).
If the person entitled to apply is a child, the application may be made by:
- if the child is over the age of 14 years, with the permission of the Court; or
- if the child is under the age of 14 years, their parent or guardian, or other suitable representative with the permission of the Court.
See Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 20.
Police issued orders
A police officer of or above the rank of sergeant (or with the authority of a police officer of or above that rank) may issue an interim intervention order against a defendant if:
- it appears there are grounds for issuing the order; and
- the defendant is present or in custody.
See Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 18.
A police issued interim intervention order serves as an application to the Court for an intervention order and a summons to the defendant to appear in Court for the hearing and determination of the application [see s 18(5)].
The police officer issuing the interim intervention order must:
- identify themselves, their rank and the relevant AP number on the order;
- record in writing the grounds for issuing the order;
- advise the Court of any relevant parenting or care and protection orders on the first return date;
- arrange for affidavit evidence or relevant witnesses to attend the Court to give evidence; and
- apply before the hearing for a protected person to give evidence via audio-visual link.
See Magistrates Court (Criminal) Rules 1992 (SA) r 18.01.
On the first return date, the Court will hear evidence as to the grounds for the order and where possible, keep an audio-visual record of any oral evidence. If the defendant contests any factual matter or the confirmation order, the evidence given at the first return date will be considered to be part of the evidence in chief adjourned to a later date fixed by the Court [r 18.03]. A defendant or the defendant's solicitor is entitled, upon request, to be given a copy of the audio-visual recording of the protected person's evidence or view it under the supervision of the Registrar [r 18.29].
Court issued orders
If an application is made direct to the Court, the Court must:
- hold a preliminary hearing as soon as practicable; and
- without summoning the defendant to appear [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 21(1)].
The Court may issue an interim intervention order at this hearing if it appears there are grounds for doing so [see s 21(3)].
An interim intervention order issued by a Court will also serve as a summons for the defendant to appear in Court for the hearing and determination of the application [see s 21(9)].
If the applicant (other than a police officer) alleges non-domestic abuse, the Court must consider whether mediation is an option before making an order [see s 21(4)].
After the issuing of an interim intervention order by the police officer or Court, the defendant will be required to appear in Court within 8 days (or 2 days after the Court next commences sitting at that place) [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 18(3)].
If the defendant does not appear, the order may be made final [s 23(2)].
At this hearing the Court may:
- confirm the interim intervention order;
- substitute the intervention order for a different final order;
- dismiss the application and revoke the interim intervention order;
- adjourn the hearing if necessary, for example, if the defendant has not yet been served;
- if the defendant contests the application, set another date for hearing evidence.
If a defendant wants to dispute an order or the terms of an order, they must attend this hearing. Otherwise the order may be made final, and the defendant breaches the order he or she may face a criminal charge.
Special arrangements for evidence and cross-examination
The Court may order that special arrangements be made for the taking of evidence from a protected person [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 29]. A defendant may not personally cross-examine a protected person. Cross-examination is either to be done his or her lawyer or through the Court’s nominee [see 29(4)].
Where a defendant is not represented by a lawyer, must submit any proposed questions in writing to the Court before the hearing and the Court may give directions to permit further questions as the hearing progresses [Magistrates Court Rules 1992 r 18.24].
If the prosecution is made aware that the victim or other person connected to the proceedings for an alleged offence feels a need for protection from the alleged offender, they must ensure this is brought to the attention of the bail authority. The bail authority must then consider applying for, or if the Court, making an intervention order, as if an application had been made [see Bail Act 1985 (SA) s 23A].
Upon finding of guilt or sentencing
Since 25 November 2017 local and interstate intervention orders (declared as addressing a domestic violence concern) have been recognised and enforceable nation-wide under provisions in the Intervention Orders (Prevention of Abuse) Act 2009 (SA)[s 15A]. Foreign orders (e.g. an intervention order issued in New Zealand) may also be recognised Australia wide. In the case of foreign orders registration of the order is required.
If an order is a recognised intervention order (declared as addressing a domestic violence concern) it can be:
recognised and enforced in any jurisdiction [ss 29D, 29I, 29L]
varied in any jurisdiction [s 29E]
revoked in any jurisdiction [s 29F]
For those orders issued prior to commencement (i.e. before 25 November 2017) an application to the court for a declaration that the order addresses a domestic violence concern is necessary before it can be recognised and enforced in other states [ss 29ZB – 29ZF]. The application is made on a Form 46A [see Courts Administration Authority’s website].
When does an intervention order come into force?
An intervention order (whether interim or final) usually comes into force only once served upon the defendant personally [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 18(4), 21(8), 22(5), 26(7)].
How long does an intervention order last?
An intervention order is ongoing and continues in force until it is revoked [see s 11].
Who may apply to vary or revoke an order?
A defendant has to wait at least 12 months after the order was issued to apply to vary or revoke it [see ss 15(2) and 26(3)]. The Court may fix a longer date before which the defendant may apply [see s 15(1)].
If the Court is not satisfied that there has been a substantial change in the relevant circumstances since the order was issued or last varied, it may dismiss the application [see s 26(4)(b)].
Unlike a defendant, a police officer or protected person(s) may apply to vary or revoke an intervention order at any time [see s 26(1)].
The police may decline to apply to vary or revoke an intervention order on behalf of a protected person if they believe it will put the protected person at increased risk.
It is a criminal offence to breach an intervention order [see s 31].
The maximum penalties are set out in s 31 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
Can the protected person be charged?
A protected person cannot give a defendant permission to breach an intervention order, nor can they be charged with aiding, abetting, counselling or procuring the breach [see ss 17 and 31(3)].
There is an overlap between intervention orders as determined by the Magistrates Court or Youth Court, and tenancy matters as determined by the South Australian Civil and Administrative Tribunal (SACAT).
Where an intervention order has been issued by the Magistrates Court or Youth Court, or domestic abuse has occurred, a separate application can be made to SACAT for orders to either terminate or replace an existing residential tenancy agreement.
As a result, victims of domestic abuse have the right to:
1. remain in the tenancy (without the alleged abuser); OR
2. have the tenancy terminated so they can leave without being adversely affected financially or otherwise
A process to remain in the tenancy is also available to non-domestic abuse victims who may choose to apply for tenancy orders in the Magistrates Court as part of their application for an Intervention Order.
SACAT is also able to make orders in relation to:
- liability for damage caused to a rental premises;
- compensation to the landlord for loss where a residential tenancy agreement was terminated as a consequence of an intervention order;
- the payment of the bond.
Any restraining orders in force under either the Domestic Violence Act 1994 or the previous Summary Procedure Act 1921 (SA) immediately before the commencement of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) continue in force as if they were intervention orders [see s 37].
There are now only two specific types of restraining order that may be made under Criminal Procedure Act 1921 (SA). One is a Paedophile restraining order [see s 99AA] and the other is a Child Protection restraining order [s 99AAC].
See Magistrates Court Rules 1992 rr18A.01 - 18A.11.