The Family Violence Court, a specialist court in the Magistrates Court, hears criminal matters connected to domestic and family violence, such as assaults on family members, and applications for intervention orders (even where the relationship has ceased). It sits in the Adelaide, Port Adelaide, Elizabeth, Christies Beach, Murray Bridge, Mount Gambier, Port Augusta and Whyalla Magistrates Courts.
The court can offer support services and protection to women and children, whilst providing certain male defendants (respondents) 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].
For more information see the Family violence and domestic violence prevention programs.
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 respondent to undergo an assessment to determine the form of intervention appropriate for the respondent and the respondent'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 respondent to undertake an intervention program where the respondent is assessed as eligible for such an intervention program and services are available for the respondent [see s 13(2)]. The respondent 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 defendant's 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.
Intervention orders aim to prevent domestic or non-domestic abuse by regulating a respondent's behaviour towards one or more protected persons. 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 a private applicant and the respondent. It is not a criminal charge and will not therefore appear on a respondent's antecedent report. However, once an intervention order is in force, it is a criminal offence to breach the order [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 [Uniform Special Statutory Rules 2022 (SA) r 6.1].
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 one or more protected persons 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 [s 28].
What is an act of abuse?
An act of abuse is any act that results in, or is intended to result in:
See Intervention Orders (Prevention of Abuse) Act 2009 (SA) section 8 for detailed examples.
An act of abuse may be domestic or non-domestic. If a respondent is or was formerly in a relationship with the protected person(s), it is referred to as an act of domestic abuse [s 8(8)]. The types of relationships considered “domestic” is quite broad.
In domestic abuse cases, all proceedings must be dealt with as a matter of priority, as far as practicable [s 9]. Where the application is disputed, there are procedures to ensure the matter is resolved as quickly as possible. There will usually only be one adjournment to hear evidence [Uniform Special Statutory Rules 2022 (SA) r 86.2(5)]. If the matter is not resolved, a pre-trial conference will be ordered. If the matter is not resolved then, a date must be set for trial [r 86.5].
The intervention order legislation is anticipatory in nature, aimed at reducing risk of abuse and orders can be issued if there is sufficient reason to suspect harm will occur. Unlike the previous restraining order legislation, there is no requirement to show evidence that actual harm has already occurred or actual threats have already been made. However, to show the respondent may commit an act of abuse, the protected person will need to indicate what behaviour of the respondent gives rise to this suspicion.
In Police v Giles[2013] 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 respondent did in the past commit acts of abuse against the protected person both before and after their relationship came to an end [at [37]-[40]], he also made the following observations at [30]-[31]:
"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 [respondent] 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 [s 10]:
Children
Any child who may hear or witness, or be exposed to the effects of, an act of abuse committed by a respondent against a protected person may also be protected by the order [s 7(1)(b)].
General terms
An intervention order may impose any prohibition or requirement upon a respondent [Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12].
It may prohibit the respondent from:
It may require the respondent to:
Firearms terms
An intervention order must include firearms terms [s 14]. These require the respondent to surrender any firearms in their possession as well as any firearm licence or permit. While an intervention order remains in force against the respondent, they are disqualified from holding or obtaining a licence or permit for a firearm and prohibited from possessing a firearm in the course of their employment [s 14(1)]. If the Court is satisfied that the respondent 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 [s 14(2)].
Respondent's proprietary interests
An intervention order may be issued against a respondent in relation to property despite the fact that the respondent may have a legal or equitable interest in the property [s 12(5)].
If the respondent and the protected person(s) lived together in rental housing before the intervention order was made, and the respondent is a party to the rental agreement, a tenancy order can be made in addition to the intervention order. A tenancy order gives the respondent's interest in the tenancy agreement to a specified person(s). Any bond paid by the respondent is not paid out to him or her, but continues to be held as bond for the person given the respondent's interest [see s 25].
The landlord has a chance to be heard before a tenancy order is made – rule 84.3(6) of the Uniform Special Statutory Rules 2022 (SA) provides that if an applicant wants a tenancy order, a Form 28 Notice of Application to Assign Tenancy must be served on the landlord and the respondent.
A landlord who has been notified that a respondent is prohibited from being on rented premises , but nevertheless provides the respondent with a key to the premises or otherwise assists or permits the respondent to gain access to the premises is guilty of an offence [s 32].
| If a respondent 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 respondent's property from the home. |
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Family Law Courts parenting orders
If there are children living with the person protected by the order, then the order may prohibit the respondent from spending time or communicating with them. If possible, the order should be designed to take the children’s need to see the respondent into account [s 10(2)]. The Court must take into account any relevant orders under the Family Law Act 1975 (Cth) when considering whether to make, and the terms of, an intervention order [s 10(2)(a)].
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 (Cth) s 68R].
The following persons may apply to the Court:
If the person entitled to apply is a child, the application may be made by:
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 respondent if:
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 respondent to appear in Court for the hearing and determination of the application [s 18(5)].
The police are required to complete a Form 9 Statement of Factual Matters supporting Police Issued Interim Intervention Order, which is to be served on the respondent together with the interim intervention order [Uniform Special Statutory Rules 2022 (SA) r 82.1].
For information regarding the police powers of arrest and detention to facilitate the preparation, service and enforcement of intervention orders see Arrest for intervention orders.
If the Police have issued an interim intervention order, then the Police are required to file with the Court:
See the Courts Administration Authority for the relevant forms.
On the first return date, the Court may hear evidence as to the grounds for the order and where possible, keep an audio-visual record of any oral evidence [r 84.2].
Court issued orders
If an application is made direct to the Court, the Court must [s 21(1)]:
The Court may issue an interim intervention order at this hearing if it appears there are grounds for doing so [s 21(3)].
An interim intervention order issued by a Court will also serve as a summons for the respondent to appear in Court for the hearing and determination of the application [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 [s 21(4)].
Determination hearing
After the issuing of an interim intervention order by the police officer or Court, the respondent will be required to appear in Court within 8 days (or 2 days after the Court next commences sitting at that place) [s 18(3)].
If the respondent does not appear, the order may be made final [s 23(2)].
At this hearing the Court may [s 23, r 86.2]:
If a respondent wants to dispute an order or the terms of an order, they must attend this hearing. Otherwise the order may be made final, and if the respondent breaches the order they may face a criminal charge.
Recorded evidence
On an application for an intervention order or variation of an intervention order, a police officer may tender a recording (audio or audio visual) of a protected person if the Court is satisfied that the interests of justice require the admission of the evidence [s 28A(2)(a), r 81.3]. The protected person cannot be further examined, cross-examined or re-examined on the recording without the permission of the Court [s 28A(2)(b)].
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 [s 29]. A respondent 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 [s 29(4)].
Where a respondent is not represented by a lawyer, the respondent must submit any proposed questions in writing to the Court at least 21 days before the hearing and the Court may give directions to permit further questions as the hearing progresses [rr 87.2, 88.1]. The questions are then asked by the Court or someone the Court nominates.
Bail proceedings
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 [Bail Act 1985 (SA) s 23A, r 82.6].
Upon finding of guilt or sentencing
An intervention order may be made by a Court upon a finding of guilt or sentencing as if an application had been made [Sentencing Act 2017 (SA) s 28; see also Sentencing chapter].
National recognition
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, Part 3A]. Foreign orders (e.g. an intervention order issued in New Zealand) may also be recognised Australia wide [Part 4]. 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 4B Originating Application Ex Parte – Intervention Order Act – Domestic Violence Order Nationally Recognised.
When does an intervention order come into force?
An intervention order (whether interim or final) usually comes into force only once served upon the respondent personally [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 [s 11].
Who may apply to vary or revoke an order?
A respondent has to wait at least 12 months after the order was issued to apply to vary or revoke it [ss 15(2) and 26(3)]. The Court may fix a longer date before which the respondent may apply [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 [s 26(4)(b)].
Unlike a respondent, a police officer or protected person(s) may apply to vary or revoke an intervention order at any time [s 26(1)].
An application to vary or revoke an intervention order must be made on a Form 112A Interlocutory Application to Vary or Revoke Order – Intervention Order and supported by a Form 7 Affidavit [r 93.2].
A police officer may also apply for an interim variation of an intervention order, pending the final determination of the application, in which case the Court must hold a preliminary hearing as soon as practicable and without summoning the respondent to appear [s 26A(1)]. The Court may issue an interim variation of the intervention order at this hearing if it appears there are grounds for doing so [s 26A(3)].
An interim variation of the 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 under section 26 [see s 26A(8)]. This must be within 8 days of the interim variation (or within 2 days of the Court next sitting at that place) [s 26A(5)].
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.
See also Cunningham v Police [2021] SASC 46.
It is a criminal offence to breach an intervention order [Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31].
The maximum penalties are set out in section 31. The maximum penalty is much greater if the breach involved physical violence or the threat of physical violence, or is the second or subsequent breach in a 5 year period [s 31(2aa)]. An offence will be aggravated where the offence is committed in circumstances where the respondent knew or suspected, or ought reasonably to have known or suspected, that there was a reasonable likelihood that a child would see, hear or otherwise be exposed to the conduct constituting the offence or to any effects of that conduct [s 31(5)].
Can the protected person be charged?
A protected person cannot give a respondent permission to breach an intervention order [s 17]. Further, a protected person will not be charged with aiding, abetting, counselling or procuring a breach unless their conduct aided, abetted, counselled or procured a breach against someone else protected by the order [s 31(3)].
Contacting the respondent may have an impact on any ongoing proceedings. A protected person may also be at risk of committing the offence of aiding and abetting a breach of bail, if the respondent has a non-contact clause in their bail agreement. See Bail Conditions (above).
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:
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 [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 [s 99AA] and the other is a child protection restraining order [s 99AAC].
See Uniform Special Statutory Rules 2022 (SA) Chapter 3 Part 11.
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