When deciding whether to make an interim or ongoing (final) intervention order, the police and the Court may take into account any factor they consider relevant in the circumstances [Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 10(4)], including any legal proceedings between the defendant and protected person [s 10(2)(e)].
A range of factors must be recognised and taken into account in determining whether it is appropriate to issue an intervention order and in determining the terms of an intervention order [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 10].
The nature of abuse
The Court and the police must recognise the fact that abuse:
- occurs in all areas of society and among all groups of people
- involves exploitation of power imbalances
- may be overt (obvious) or subtle (hidden)
- may consist of isolated incidents or patterns of behaviour.
What must be given priority
The Court and the police must take into account that it is of primary importance to prevent abuse and to prevent children from being exposed to the effects of abuse.
The purpose of intervention
The Court and police must ensure, as far as is practicable, that any order:
- minimises disruption to a protected person and any child living with a protected person
- enables a protected person to maintain social connections and support
- ensures continuity and stability in the care of any child living with a protected person
- allow education, training and employment of a protected person and any child living with a protected person to continue without interruption
- allows arrangements for the care of a child living with a protected person to continue without interruption
- encourage defendants to accept responsibility and take steps to avoid committing abuse
Issues in relation to contact
The Court and the police must take into account:
- any relevant Family Law Act order or Children's Protection Act order
- how an intervention order would be likely to affect contact (whether the contact is under an order or not) between the protected person or the defendant and any child of, or in the care of, either of them.
[see Intervention Orders (Prevention of Abuse) Act 2009 s 10(2)]
When deciding to issue a final intervention order the Court must make inquiries whether there is any relevant Family Law Act order or Children’s Protection Act order and how the final intervention order will be likely to affect contact between the protected person or the defendant and any child of the protected person and/or the defendant. The Court must take steps to avoid inconsistency between the intervention order and any Family Law Act or Children’s Protection Act order [Intervention Orders (Prevention of Abuse) Act 2009 s 23(1a)].
Issues in relation to property
The Court and the police must take into account any relevant agreement or order for the division of property under the Family Law Act 1975 (Cth) or the Domestic Partners Property Act 1996 (SA) or a corresponding law of another jurisdiction [s 10(2)(c)].
When considering whether:
- to prohibit the defendant from taking possession of property, or
- to require the defendant to return property to a protected person, or
- to allow a protected person to recover or have access to or make use of property,
the Court and police must take into account the income, assets and liabilities of the defendant and the protected person.
When the defendant is a child
If the defendant is a child, the Court and police must, as far as is practicable when making an order:
- ensure the child has appropriate accommodation, care and supervision; and
- ensure the child has access to appropriate educational and health services; and
- allow the education, training and employment of the child to continue without interruption.
[see Intervention Orders (Prevention of Abuse) Act 2009 s 10(1)(d)(v)]
When the defendant does not know where the protected person lives or works
The Court and police must consider whether issuing an order would be counterproductive if the defendant does not know where the protected person lives or works. Depending on the terms of the intervention order, issuing it may give the defendant this information. This would be the case, for example, where a person wanted an order that the defendant stay away from them. Other terms that do not give the defendant this information may be included in the order.
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