Domestic Violence and Intervention Orders

Part 1: What is Domestic Violence?

Part 2: Intervention Orders and the Protected Person (Victim)

Part 3: Intervention Orders for the Perpetrator (Alleged Abuser)

Legislation:

Intervention Orders (Prevention of Abuse) Act 2009 (SA)

PART 1: What is domestic violence?

Domestic violence is when someone close to you threatens you or does something to harm you or someone else in your family.

Domestic violence can include:

• physical assault: punching, hitting, kicking, pushing, slapping, choking, or using weapons;
• sexual assault: being forced to have sex or do sexual activities, either by watching or participating;
• emotional or psychological abuse: making you feel worthless, criticising your personality, your looks, the way you dress, constantly putting you down, threatening to hurt you, your children, or your pets, following you or going to places that you visit often, or recklessly driving a car that you are in;
• economic abuse: taking control of the money and not letting you have a say in how it is spent, not giving you enough money to survive on, forcing you to hand over your money, not letting you work, forcing you to sign a loan;
• threatening or intimidating you: stalking, yelling, shouting, name-calling, swearing at you (this could be spoken or in writing, for example through SMS texting or Facebook);
• damaging your property or harming your pets; or
• any other controlling behaviour directed at you or at a family member: stopping you from seeing your friends and family, or isolating you from others.

This person can be someone in your family or can be a boyfriend or girlfriend, someone living with you, a relative, a parent or carer, or even your parents’ partner.

Domestic violence can happen to you, or someone else in your family, e.g. violence between your parents. If you see it happening to someone else in your family you should still report it.

You can also be a victim of domestic violence even where you are not directly involved. This is called exposure to domestic violence and it includes situations where you hear or witness domestic violence occurring. For example you could be exposed to domestic violence by:

• Overhearing threats of physical abuse by one family member towards another family member;
• Seeing or hearing an assault of a family member by another family member;
• Comforting or providing assistance to a family member who has been physically abused by another family member;
• Cleaning up a mess after a family member has intentionally damaged another family member’s property;
• Being present when Police officers attend an incident involving physical abuse of a family member by another family member.

What can I do?

Domestic violence is unacceptable. If you see it occur or are a victim of it, you should report it. Everyone has a right to be safe from any type of violence.

Tell someone

If you feel unsafe in your home because of the violence that is happening, it is important to talk to someone. If you do not speak to anyone, or report what is happening, then no one will know what is going on and they can’t help you. You could talk to an adult you trust and feel comfortable with, like a family friend or your teacher. Below is a list of important contacts you can call if you need to talk to someone else.

PART 2: Intervention Orders and the Protected Person (Victim)

What will happen if I report domestic violence to Police?

Police will help you to obtain an Intervention Order – previously known as Restraining Orders.

What is an Intervention Order?

An Intervention Order is a court Order against a person who makes you fear for your safety, to protect you from further violence, intimidation or harassment. The person you fear (known as the defendant) must obey the Order made by the court. An Intervention Order prohibits the defendant from assaulting, harassing, threatening, stalking, or intimidating you. An Order can be made against anyone you fear including a spouse, a relative, a neighbour or someone with whom you have had an intimate relationship. If you fear for your children’s safety, you can include them in your application.

How to apply for an Intervention Order

If you have been assaulted, threatened or have had property damaged, call the Police or go to a Police station to make a report. The Police have the power to issue an interim (temporary) Intervention Order if the defendant is present or in custody. An Intervention Order starts once the Police hand it to the defendant.

Before you make a report, make a list of the things that have made you fear the person or feel unsafe. Try to include details of when and where these things happened and if there were any witnesses. It is helpful to have a written statement prepared beforehand.

Your statement should include details about:

• Your relationship with the other person
• If you have children, their names and age
• If the children witnessed the abuse or have been abused themselves
• If there are any drug, alcohol or mental health issues
• If the other person has access to a weapon
• Details of physical violence, threats, intimidation, stalking, property damage or dangerous driving
• Any harassing phone calls, texts, Facebook posts or emails. Where possible, show these to the Police.
• Whether any other people close to you have also been threatened or have reason to be scared
• Copies of any Family Court Orders or Child Protection Orders

The Police may also decide to lay criminal charges against the defendant after hearing your story. Only the Police can do this – you cannot lay or withdraw charges.

Why won’t the Police always help?

They may feel there is not enough evidence. If you disagree, ask to be referred to the Family Violence Investigation Unit in your area. If the Police are unwilling to act, you can make your own application – by yourself or with the help of one of our Solicitors.

What steps are involved?

1. APPLICATION
If immediate protection is required, ask the Police to issue an interim Order. If the Order is not urgent, the Police (or you) can apply for an Intervention Order at the Magistrates Court. It can take several days to arrange a preliminary hearing.

2. PRELIMINARY HEARING
At the preliminary hearing, a Magistrate will read your statement and if he or she decides there is enough evidence, an interim Order will be made. The defendant will not be present at this hearing.

3. LETTING THE DEFENDANT KNOW
The interim Intervention Order does not take effect until the Police hand it to the defendant personally. Once this has been done, it is in force and you should tell the Police if it is not obeyed. It is helpful to keep a copy of the Order handy, and provide a copy to others who may witness and report any breaches to the Police, e.g. a child’s school if it is included in the Order.

4. DETERMINATION HEARING
After the issuing of an interim Intervention Order, the defendant will be required to attend at a date set by the court. If the defendant does not attend court, the Order will be made final.

At this hearing the court can:

• confirm the interim Order and make it final, or
• substitute the interim Order for a final Intervention Order (this will occur if the Order needs to be changed), or
• dismiss the application and end the interim Order, or
• adjourn the hearing if necessary, for example, if the defendant has not yet been served, or
• if the defendant opposes the application, set another date for hearing evidence.

If the matter is not resolved, a date will be set for a trial to decide if an Order should be made. In a domestic abuse situation where the application is contested, there are procedures to ensure your protection in court and to have the case resolved as quickly as possible.

Do I have to go to court?

If you make the application yourself, you must attend. If the Police are making the application, they will say if you are required to attend. Your case may be more likely to succeed if you appear in court. It is a good idea to bring a friend to support you.

What is covered?

This depends very much on your situation. Here are some of the conditions that can be Ordered:

• Your protection, the protection of other family members and any children. If it is appropriate that your child has some contact with the defendant, the Intervention Order can take this into account.
• The defendant can be Ordered to allow you to access or use property or to return property to you.
• An Intervention Order (including an interim Intervention Order issued by the Police) must include a term requiring the defendant to surrender any firearm and any firearms licence, suspending any firearms licence and disqualifying the defendant from having a firearms licence while the Intervention Order is in force.

The court can also Order that the defendant attend a violence intervention program. If the court (not the Police) believes there is a reasonable likelihood of harm to family members because of problem gambling, it may also issue a problem gambling Order.

Your home

A defendant may be Ordered to stay away from premises even if they own or rent them.

If you are in rented premises, and the defendant has been living with you in those premises, you can apply to the South Australian Civil and Administrative Tribunal (SACAT) to either:

• remain in the premises as the sole tenant (if you are able to pay the rent), or
• terminate the tenancy (with a co-tenant liable for any loss or damage they have caused)

It may be possible for the defendant, if they were a co-tenant, to remain in the premises as the sole tenant. You may change door or window locks, even if the premises are rented. If locks are changed on rented premises, the landlord must be given a key (unless the landlord is the defendant).

Can the Defendant find out my address?

It is the policy of the Police and the court not to give out the victim’s address. Tell the Police if you do not wish the defendant to know your address.

What if the Intervention Order is ignored?

The defendant must obey the Order and may be charged with a criminal offence if it is ignored.

How long does an Order last?

An Intervention Order is ongoing and continues in force until it is revoked by the court.

Can an Order be changed or stopped?

Yes. An application can be made to the court to have an Order changed or stopped. The defendant has to wait at least 12 months after the Order was issued to apply to change or stop it. In any event, an application will only be successful if the defendant can prove that there has been a substantial change in circumstances since the Order was made.

Enforcement of Orders nationwide

Since 25 November 2017, all Intervention Orders issued in South Australia (addressing a domestic violence concern) are automatically recognised and enforceable nationwide. The same applies to those issued in others states. They are now automatically recognised and enforceable in South Australia.

If your Order was issued prior to 25 November 2017, you will need to apply for a declaration that it addresses a domestic violence concern before it can be recognised and enforced nationwide. If you are moving to another state and are concerned the defendant will follow you, you should apply for this declaration before you move.

If you have a foreign Order, for example, from New Zealand, it can also be recognised and enforced as if it was a South Australian Order; but you must register it here first. If serving the registered Order on the defendant would be unsafe for you, the court can Order that the Order take effect without service on the defendant.

PART 3: Intervention Orders for the Perpetrator (Alleged Abuser)

THE NEXT SECTION IS FOR PEOPLE WHO HAVE RECEIVED THE INTERVENTION ORDER – THE ABUSER

Receiving an Intervention Order

Receiving an Intervention Order is not a criminal matter and does not give the defendant a criminal record. However, if the defendant disobeys (breaches) the Order, then the defendant may be charged with a criminal offence and get a criminal record.

The fact that a person is a defendant to an Intervention Order may be assessed within a children, disability services or similar employment clearance check, but may or may not impact on the outcome.

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 – Interim Intervention 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 Victim, or the Police on behalf of a Victim, 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.

Your First Court Appearance

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. You will not be arrested for failing to attend court, but you should go. By not being there, you risk an Final Interim Intervention Order being made in your absence with conditions you may not agree with.

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, 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 Solicitor, 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.
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

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. 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. 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. 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.

Breaching an Intervention Order

While obtaining an Intervention Order is a civil matter, it is a criminal offence to breach or contravene an order. The penalty is a maximum two years gaol.

The Police may arrest you if they suspect you have contravened the Intervention Order.

The Protected Person will not be charged with aiding or abetting a contravention of an Intervention Order.