The Intervention Orders (Prevention of Abuse) Act 2009 (SA) recognises that abuse can take many forms including emotional, psychological and economic and is not limited to physical or sexual abuse.
In order for an intervention order to be issued there must be a reasonable suspicion that the defendant will commit an act of abuse against the victim. An act of abuse is defined as an act resulting in:
- physical injury
- emotional or psychological harm
- an unreasonable and non-consensual denial of financial, social or personal autonomy
- damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person
For example, if a defendant threatens to harm someone you are close to and this causes you distress, the defendant has committed an act of abuse against you.
Similarly, a defendant commits an act of abuse [s 8(7)] if they:
- cause someone else to abuse a person
- allow someone else to abuse a person
- cause or allow someone to participate in an act of abuse
"Emotional or psychological harm" includes mental illness; nervous shock; and distress, anxiety or fear that is more than trivial. Examples of such harm include [s 8(4)]:
- sexual assault or engaging in behaviour designed to coerce the victim to engage in sexual activity
- unlawful deprivation of liberty
- driving a vehicle in a reckless manner while the victim is a passenger
- causing the death of, or injury to, an animal
- following the victim
- entering or interfering with property in the possession of the victim
- loitering outside the place of residence of the victim or some other place frequented by them
- giving or sending offensive material to the victim, or leaving offensive material where it will be found by, given to or brought to the attention of the person
- publishing or transmitting offensive material by means of the internet or any other form of electronic communication in such a way that the material will be found by, or brought to the attention of, the victim
- communicating with a victim, or to others about a victim, by way of mail, telephone, fax or the Internet or some other form of electronic communication in a manner that could reasonably be expected to cause emotional or psychological harm to the victim
- keeping the victim under surveillance
- directing racial or other derogatory taunts at the victim
- threatening to withhold the victim's medication or to prevent them accessing necessary medical equipment or treatment
- threatening to institutionalise the victim
- threatening to withdraw care on which the victim is dependent
- threatening to cause the victim physical injury, emotional or psychological harm or an unreasonable or non-consensual denial of financial, social or domestic autonomy or to cause property damage
Examples of "unreasonable and non-consensual denial of financial, social or personal autonomy" include [s 8(5)]:
- denying the victim the financial autonomy they would have had but for the abuse
- withholding financial support necessary for meeting the reasonable living expenses of the victim (or any dependants of the victim) in circumstances where the victim is dependent on the financial support to meet those living expenses
- preventing the victim from seeking or keeping employment
- causing the victim through coercion or deception to: relinquish control over assets or income; or claim social security payments; or sign a contract of guarantee or sign a power of attorney enabling their finances to be managed by another person
- preventing the victim from making or keeping connections with their family, friends or cultural group, from participating in cultural or spiritual ceremonies or practices or from expressing their cultural identity
- exercising an unreasonable level of control and domination over the daily life of the victim.
The distinction between domestic and non-domestic abuse
In domestic abuse cases, all proceedings must be dealt with as a matter of priority, as far as practicable [s 9]. The Magistrates Court Rules 1992 also ensure that any adjournments are kept to a minimum in domestic abuse cases.
Domestic abuse is where an act of abuse is committed by the defendant against a person with whom they are or were in a relationship [see Intervention Orders (Prevention of Abuse) Act 2009 s 8(8)].
For the purposes of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), two people are in a relationship if:
- they are married to each other; or
- they are domestic partners under the Family Relationships Act 1975 (SA) - whether declared as such under the Act or not; or
- they are in some other form of intimate personal relationship in which their lives are interrelated and the actions of one affects the other; or
- one is the child, stepchild or grandchild, or is under the guardianship, of the other (regardless of age); or
- one is a child, stepchild or grandchild, or is under the guardianship, of a person who is or was formerly in a relationship (marriage, domestic partnership or intimate) with the other; or
- one is a child and the other is a person who acts in loco parentis in relation to the child; or
- one is a child who normally or regularly resides or stays with the other; or
- they are siblings (brothers or sisters, or brother and sister); or
- they are otherwise related to each other by or through blood, marriage, a domestic partnership or adoption; or
- they are related according to Aboriginal or Torres Strait Islander kinship rules; or
- they are both members of some other culturally recognised family group; or
- one is the carer (within the meaning of the Carers Recognition Act 2005 (SA)) of the other.
For details about what constitutes non-domestic abuse and the considerations taken into account in hearing a non-domestic abuse intervention order application see Non-domestic abuse intervention orders.
Under section 8(9) of the Intervention Orders (Prevention of Abuse) Act 2009 non-domestic abuse is defined as an act of abuse committed by a defendant against a person with whom the defendant is not, and was not previously, in a relationship. Notably the definition includes circumstances in which a defendant imagines a relationship exists.
Where the application is not made by the police, the court must consider the following [s 21(4)]:
- whether mediation is appropriate and practicable as a means of resolving any dispute (if one exists);
- whether the application is in the nature of a cross-application (i.e. another intervention order application has been made by the other party or there is another civil matter that has been initiated by the defendant)
- any other matters the court considers relevant.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.