Violence between family members is subject to legal intervention in the same way as violence between strangers.
Family violence is recognised to take many forms, including not only physical injury, but also emotional and psychological harm, social isolation and financial control.
Even though not all forms of family violence carry a criminal sanction and penalty, all forms are often relevant to courts, for example, all forms are relevant when a court is making intervention orders or parenting orders.
Victims of family violence in the past have been stigmatised and the prevailing attitude of keeping the problem behind closed doors as a ‘private’ family matter only furthered victimisation and increased the vulnerability of victims. Legislation now emphasises family violence as a social problem affecting all members of society and attracting the full sanctions of criminal justice intervention.
However, it should be noted that legal remedies can sometimes be of limited use in a crisis. It is more often the practical steps and planning a person can take which will be of much greater significance for their safety than reliance on legal remedies alone.
The menu above provides a list of practical measures which may be taken in response to family or domestic violence.
If you are experiencing family or domestic violence and you are concerned that the perpetrator may find out that you have been searching the internet for help, you may be able to delete your internet browser history.
How you go about doing this will depend on which internet browser you are using.
These instructions also explain how to browse in-private in future (so that you do not create a history).
The short cut keys to delete your internet browser history are Ctrl-Shift-Delete.
The short cut keys to browse in-private are Ctrl-Shift-P.
eSafety Women (run by the Office of the eSafety Commissioner) also provides information and resources specifically to help women manage technology risk and abuse - visit eSafety Women for more information.
The most immediate concern of anyone who has been assaulted, had property damaged or experienced other abusive behaviour is to get protection. This can be done by calling the police.
In an emergency: 000
For police attendance: 131 444
A person calling the police should give their name and address, explain the situation and its urgency, and ask for the name of the officer. If the police fail to come in a short time, the person should call again, and keep calling. If this is not effective, the person should call the Domestic Violence Crisis Line on 1800 800 098 and that service can then be asked to contact the police as well.
Each Adelaide district area has a Family Violence Investigation Section staffed by police officers trained to assist victims seeking an intervention order and investigate reports of family violence. The contact details for these sections are as follows:
Police Family Violence Investigation Sections
Eastern Adelaide District Telephone: (08) 7322 4890
Northern Adelaide District Telephone: (08) 8207 9381
Western Adelaide District Telephone: (08) 8207 6413
Southern Adelaide District Telephone: (08) 8392 9172
What can the police do?
The police have a duty to prevent breaches of the peace and to deal with people who have committed criminal offences even though the behaviour complained of may be occurring in a home. The police have the ability and authority to counter violence, as well as the power of arrest. Remember, an assault can be committed even without physical contact, see CRIMINAL AND TRAFFIC OFFENCES.
- issue an interim intervention order requiring the perpetrator to leave the premises (even if the perpetrator owns or rents the premises);
- require a perpetrator to stay in a particular place for up to two hours (or longer with the permission of the Court) while they prepare an interim intervention order or while a Court makes a decision about an interim intervention order;
- apply to Court for an intervention order on behalf of a person if they are unable or unwilling to make an interim intervention order;
- enter a home to investigate a claim that family violence occurred within the home;
- charge the perpetrator with a criminal offence (such as assault or property damage);
- make bail conditions so that the perpetrator is not able to contact the victim or children and additionally not attend anywhere they live, work or go to school;
- provide information pursuant to the Domestic Violence Disclosure Scheme regarding a perpetrator's previous convictions, intervention orders, police reports and charges laid;
- reprimand but take no further action.
The police may also assist a person who has been assaulted to leave the premises and:
- assist a person by arranging for them to get to a safe place by contacting the Domestic Violence Crisis Line, which can arrange immediate accommodation, particularly if the person has children.
The action taken by the police will depend on the seriousness of the behaviour that has been brought to their attention. Often the action will depend on the attitude of the victim. However if the police have evidence that an offence has taken place it is police policy to take action. It is not left up to the victim to decide whether the perpetrator will be charged with an offence, but the victim can ask that a charge be laid. A person arrested by the police will be taken to the police station and charged, see ARREST, YOUR RIGHTS AND BAIL.
A victim of violence who feels that a criminal charge should be laid should insist upon this course of action. A victim who feels that the police are being unresponsive should ask to speak to an officer in the Family Violence Investigation Section who may be able to assist. Support through a domestic violence service, the Women's Domestic Violence Court Assistance Service or getting legal advice may also help. If the police still refuse to lay charges and the victim feels their refusal is unjustified a detailed written complaint can be made to the Office for Public Integrity, see COMPLAINTS.
Domestic Violence Disclosure Scheme
The Police also administer the Domestic Violence Disclosure Scheme, where a person at risk of domestic violence can request certain information from the Police regarding a partner or ex partner's previous interactions with the Police.
Information that can be disclosed includes:
- convictions for relevant offences (including offences committed interstate);
- current or historical intervention orders and any breaches of those orders; and
- relevant Police reports and any charges laid.
A person requesting access to such information will also be connected with domestic violence specialist support services.
To access the scheme a person must complete an application form, which is available via the SAPOL - Domestic Violence Disclosure Scheme website, or which can be completed in person at a police station.
Information sheets and brochures on the Domestic Violence Disclosure Scheme can also be obtained via the SAPOL website.
A victim of family or domestic violence often needs practical help to get out of the violent situation. Many victims are held back from getting out because of lack of support or other accommodation.
Staying at home
Sometimes when the police issue an intervention order or the perpetrator is charged with an offence, it may be a condition of the intervention order or the perpetrator's bail that they do not contact the victim and stay away from their former home.
Indeed in considering making an intervention order, the police must seek to ensure minimal disruption to the person who has been abused and any child involved [see Intervention Orders (Prevention of Abuse) Act 2009 s 10(1)(d)(ii)]. Therefore, it is more appropriate that the perpetrator is removed from the home rather than the person who has been abused. Similarly the police may make conditions of bail for the protection of any victim [see Bail Act 1985 (SA) ss 11(2)(a)(ii) and (2a)]. When considering bail, they must also consider whether to apply to the court for an intervention order [s 23A(1)].
Other measures may be taken for the victim's safety in staying at home, such as making the home premises more secure through the use of security doors and window screens. This may be an option where the perpetrator does not live in the same premises or is required to stay away from the premises and only attends under the influence of alcohol or for some other reason. An effective security system can help to keep the perpetrator away or at least give some protection until the police are called for assistance.
Leaving the home
Sometimes it may be that a victim needs to leave their home to find safety elsewhere. This may be just for a night or a few weeks until the situation has eased or it may be permanent.
A victim should be cautious of any devices which may be able to track the victim's location, such as personal computers, smart phones, tablets or watches, or any other services which may be linked to the perpetrator and provide a form of information and tracking, such as metro cards or loyalty cards. It would be wise to switch off location tracking on any devices (seek expert help if necessary) and discontinue use of any services which may be linked to the perpetrator.
The DV Crisis Line 1800 800 098 (open 24 hours) can provide South Australian victims with advocacy, telephone counselling, short-term face-to-face counselling, support to remain safe at home or access to other safe accommodation and referrals for and in relation to police, legal services and financial assistance.
There are also regional domestic violence services that can provide advocacy, counselling and access to other safe accommodation on site or elsewhere.
Telephone: (08) 8152 9200
Please see a full listing of domestic violence services throughout South Australia in our Service Directory.
Where possible, a victim should take any children to safety with them. They should then obtain legal advice about the ongoing arrangements for the children and any property matters as soon as possible. A victim does not jeopardise their rights to a later property settlement application if they leave the home as a result of family violence.
Legal advice is free from the Legal Services Commission or community legal services. If making an appointment for advice with the Legal Services Commission, ask to speak with a domestic violence worker. Ongoing legal representation through legal aid is subject to a means and a merit test. Community legal services may also apply such a test. Usually, those with little income, and who are caring for children, are eligible for assistance.
Depending on individual circumstances, a person may be eligible for Centrelink income support payment/s, such as Newstart Allowance or Parenting Payment and Rent Assistance. A victim of domestic violence may also be eligible for a once-off Crisis Payment. For more information, see the Department of Human Services/Centrelink website, or seeCentrelink - Special Provisions for People Experiencing Family Violence.
Further financial assistance may be obtained through the Department for Child Protection and/or agencies such as UnitingCommunities, the Salvation Army, Centacare or St Vincent de Paul Society. It is best to check with these organisations to determine the most appropriate assistance. A comprehensive directory of South Australian community organisations is available online at SA Community.
There are a number of community housing associations which may be able to offer housing. Those who have experienced family violence are eligible to apply for housing from the Women's Community Housing Association Inc. For a list of all South Australian community housing associations see the SA Government Community Housing Providers website.
A person who is on a spouse visa, and separates from their spouse on account of family violence, will need to obtain immigration advice. There are provisions to allow such people to continue with an application for a permanent visa even though they may have separated from their spouse who sponsored them. For more information see the Department of Social Services Family Safety Pack and Family Violence and Partner Visas Factsheet(both available in multiple languages).
Counselling or family therapy
Most Women's Health Centres and Community Health Centres provide opportunities for women to have individual counselling or to speak to women in similar circumstances. Counsellors are also available through Centacare, Anglicare, Uniting Communities, Relationships Australia and other counselling services. There are also some domestic violence groups for men that specialise in counselling men who recognise that they are perpetrators of abuse and who wish to take some positive steps to change the situation.
Some employers have agreed to providing employee assistance programs and specific rights and entitlements for employees experiencing family violence. To find out whether a particular workplace has done so, check the employer's policies and the employee's award or enterprise agreement. The specific rights and entitlements acknowledge that family violence can have an impact on a worker's performance, productivity and safety at work.
From the first full pay period after 1 August 2018, all modern awards will include an entitlement to 5 days unpaid leave per annum for all employees (including casuals) who are experiencing family and domestic violence. For more information about this entitlement, see the Fair Work Ombudsman.
More information and advice can be obtained from the Working Women's Centre, and their DV Work Aware website.
Can children be affected?
Yes, children can suffer emotionally and physically as a result of being exposed to violence within their family.
They might withdraw, feel helpless and/or blame themselves. They might develop problems with wetting, soiling and sleeping.
They might copy violent behaviour and think that it is normal.
For more information, see the Domestic Violence Hurts Children Too!! brochure produced by the National Association for the Prevention of Child Abuse and Neglect (NAPCAN).
Where can children get help?
Children can get free, private and confidential telephone and online counselling from the Kids Helpline.
Telephone: 1800 55 1800 or visit the Kids Helpline website.
If children feel in danger, they can also call the police.
In an emergency: 000
For police attendance: 131 444
The police and the Department for Child Protection are available to step into any situation where a child has been assaulted. Any person who believes that a child is in any danger from assault or is abused or neglected by her or his parents or a guardian or other persons, should report this to the Department for Child Protection.
Child Abuse Report Line: 13 14 78.
A number of professional people who come into contact with children in the course of their work are obliged by law to report suspected cases of child abuse. For more information, see CHILDREN AND YOUNG PEOPLE, Child Protection, Notification.
The Family Safety Framework was established by the South Australian Government to enable various government and non-government agencies to share information and work together towards meeting the needs of families experiencing domestic violence and who are at high risk of serious injury or death.
Participating agencies include, for example:
- Victim Support Service
- Women's Domestic Violence Services
- South Australia Police
- the Department for Child Protection
- Housing SA
- Drug and Alcohol Services SA
Key elements of the framework include:
- Common risk assessment
- Protocol for sharing information
- Referral to family safety meetings
- Ongoing monitoring and evaluation
The worker referring a case to a family safety meeting will seek the consent of the victim, where it is safe to do so. However, even if the victim refuses to provide consent the case may still go to a family safety meeting. If this is the case, the referring worker must notify the other participating agencies at the meeting that the victim refused to provide consent and the reasons why. If there is a risk of serious injury or death, action may still be taken following the meeting to minimise the risk and increase the victim's safety.
More information about the Family Safety Framework is available from the Office for Women website.
An intervention order (previously known as a restraining order) is a court order which prohibits a person (the defendant) from behaving in a particular manner towards a protected person (or persons). In addition to acting as a restraint on the behaviour of the defendant, they can also direct the defendant to comply with certain directions. In short, any measures that are deemed necessary to protect the protected person or persons can be made the terms of an intervention order.
An intervention order is an order under civil law – that is, an intervention order is not a criminal charge, although criminal penalties may apply if the order is breached.
Intervention orders are largely made by the Magistrates Court. While an intervention order is an order under civil law, jurisdiction to hear and determine them is vested in the criminal division of the Magistrates Court [see Magistrate Court Rules (Criminal) 1992 (SA) rule 4.07].
The object of an intervention order is to protect anyone against whom it is suspected the defendant will commit an act of abuse, including any child who may be exposed to the effects of abuse committed by the defendant against another person.
An order can be made in relation to a defendant living anywhere in Australia.
Both domestic and non-domestic abuse situations are covered by the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
The primary focus of this section is on domestic violence intervention orders. For information on non-domestic abuse situations see Non-domestic intervention orders.
An intervention order can be made if it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person AND the issuing of the order is appropriate in the circumstances [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 6]. See also When is an intervention order appropriate?
The intervention order legislation is anticipatory in nature, aimed at reducing risk of abuse and 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 defendant may commit an act of abuse, the protected person will need to indicate what behaviour of the defendant gives rise to this suspicion.
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 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.
Any child who may hear or witness, or otherwise be exposed to the effects of, an act of abuse committed by the defendant against a person may be protected by an intervention order.
An intervention order may be issued for the protection of a person even if they do not apply for protection themselves and the application is not made on their behalf. For example, after an applicant has spoken to the Court, it may be evident to the Court that another person in the same household as the applicant may also need protection. That other person can be included as a protected person in the order as well as the applicant, or the Court can issue a separate intervention order for the other person’s protection.
[See Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 7].
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.
An intervention order (including an interim intervention order issued by the police) can include terms prohibiting a defendant from doing certain things in order to protect a victim (or victims) from abuse. An intervention order can also require a defendant to do certain things [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12].
If a prohibition is imposed, conditions may be included in the order under which the prohibition does not apply.
If a requirement is imposed, the order may include conditions in relation to the requirement.
A firearms term must be included in every intervention order (including an interim intervention order issued by the police). There is only one exception to this rule [see Firearms terms].
Additional orders that can be made are:
- intervention program orders;
- tenancy orders;
- problem gambling orders;
- an order about when the defendant may apply for variation or revocation [see this page below].
An intervention order is ongoing until revoked by the Court, therefore an order cannot contain a term that sets an expiry date or limits how long the order can be.
The defendant may be prohibited from:
- being on, or in the vicinity of, premises at which a protected person resides or works
- being on, or in the vicinity of, specified premises frequented by a protected person
- being in a specified locality
- approaching within a specified distance of a protected person.
A defendant may be ordered to stay away from premises even if they have a legal or equitable interest in the property. The protected person 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) [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12(5)]. See also Tenancy Orders.
A landlord who has been notified of a prohibition on the defendant from being on rented premises commits an offence if they give the defendant a key or assist or permit them to access the premises [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 32]. The maximum penalty is a $10 000 fine.
See also Principles for intervention.
The defendant may be prohibited from:
- contacting, harassing, threatening or intimidating a protected person or any other person at a place where the protected person resides or works
- causing or allowing another person to engage in such conduct.
[See Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 25].
A tenancy order is an order that the defendant will be taken to have given their interest in a tenancy agreement to a specified person or persons (not necessarily the protected person) with the landlord's consent.
Tenancy orders issued by the Court should be distinguished from the process available to victims of domestic abuse to replace an existing residential tenancy agreement on application to the South Australian Civil and Administrative Appeals Tribunal (SACAT). The Court does not require that there be a domestic relationship between the parties so a court ordered tenancy order is more likely to be utilised in non-domestic abuse cases. For details about making an application through SACAT see Intervention Orders and tenancy agreements.
The Court may make a tenancy order if:
- the Court issues a final intervention order (i.e. not an interim intervention order)
- prohibiting the defendant from being on rented premises where the protected person lives
- where the defendant and protected person previously resided together, and
- where the defendant is a party to the rental agreement.
The Court may only make a tenancy order if the person who will be taking over responsibility for the tenancy agrees to do so. The person who will be responsible for the tenancy must also be able to fulfil the responsibilities of a tenant (for example, they must be able to pay the rent).
Where the landlord is a registered housing co-operative, the person taking over the tenancy must be eligible for membership of the co-operative and willing to accept the responsibilities of membership.
Where the landlord is the South Australian Housing Trust or a subsidiary of the South Australian Housing Trust, the person taking over the tenancy must meet the eligibility requirements of the Trust.
The landlord does not have to consent to the tenancy order, but the Court will only make a tenancy order if it would be unreasonable for the landlord to withhold consent [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 25(2)]. However, rule 18.21 of the Magistrates Court Rules 1992 indicates that if an applicant wants a tenancy order, the Court may require that a Notice of Intention to Assign Tenancy (Form 38) be served on the landlord, any existing tenants and the person who proposes to take over the defendant's rights and responsibilities under the tenancy. This informs them of the application for a tenancy order and gives them a chance to be heard.
A copy of the tenancy order must be provided to:
- the protected person; and
- the defendant; and
- the landlord; and
- the person who is taking over the tenancy (if not the protected person); and
- the Registrar of the South Australian Civil and Administrative Tribunal.
The defendant is still responsible for any liabilities that arose under the tenancy agreement before the date of the tenancy order.
Any bond money paid by the defendant is not paid out to the defendant but stays held as bond money for the new person responsible for the tenancy
An intervention order (including an interim intervention order issued by the police) must include a firearms term [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 14]. The firearms term must:
- require the defendant to surrender any firearm and any firearms licence or permit
- suspend any firearms licence or permit while the intervention order is in force
- disqualify the defendant from having a firearms licence or permit while the intervention order is in force.
The definition of a ‘firearm’ is comprehensive and includes ammunition or any part of a firearm [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 3(1)].
A firearms term must be included in the intervention order even if the defendant uses a firearm in the course of their employment [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 14(1)(b)(iii)].
The only exception to the requirement to include a firearms term is when:
- the Court is issuing an ongoing (final) intervention order (not an interim intervention order, when the term must be included) AND
- it is satisfied the defendant has never been guilty of violent or intimidatory conduct AND
- the defendant needs to have a firearm for purposes related to earning a livelihood.
[See the Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 24].
If the Court believes there is a reasonable likelihood of harm to family members because of problem gambling, then when confirming an interim intervention order/issuing a final intervention order, it may also issue a problem gambling order.
A problem gambling order is in addition to the intervention order and means the defendant is subject to a problem gambling family protection order under the Problem Gambling Family Protection Orders Act 2004 (SA). The Court can make the same kind of orders in a problem gambling order that the Independent Gambling Authority can make when issuing a problem gambling family protection order, such as an order barring the defendant from particular gaming venues and/or requiring the defendant to attend counselling.
The Act states that where there are issues of substance abuse, problem gambling, other behavioural problems or mental impairment, an intervention order (including an interim intervention order issued by the police) may require the defendant to undergo an assessment to determine a form of intervention program that is appropriate for the defendant and the defendant's eligibility for the services included on the program.
An intervention order issued by the Court (but not the police) may require the defendant to participate in an intervention program in relation to substance abuse, problem gambling, other behavioural problems or mental impairment. Further details about abuse prevention programs are available at the Courts Administration Authority website.
The defendant may be prohibited from:
- damaging specified property
- taking possession of specified personal property reasonably needed by a protected person
- causing or allowing another person to damage or take such property.
The defendant may be required:
- to surrender specified weapons or articles that have been used, or that there is some reason to believe might be used, by the defendant to commit an act of abuse against a protected person
- to return specified personal property to a protected person
- to allow a protected person to recover or have access to or make use of specified personal property and to allow the person to be accompanied by a police officer or other specified person while doing so.
See also Principles for intervention.
[See Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 15].
A final intervention order is taken to include a term fixing the date after which the defendant may apply for variation (or further variation) or revocation of the order as 12 months after the date of issue or variation of the order.
However, the Court may include a term that specifically states when the defendant can apply for variation or revocation of an order. The date set by the Court must be at least 12 months from the date of issuing the order.
Who can apply for an intervention order?
The police, anyone who has suffered from abuse or their representative, or a child who may hear or witness abuse may apply to the Magistrates Court for an intervention order. If the person is under the age of 14, a parent or representative may apply on their behalf.
If you need immediate protection, call the police.
The police have the power to issue an interim intervention order if the defendant is present or in custody. This will give you protection as soon as the defendant is notified and the protection will be immediate, that is, without the need to go to court first.
The police will ask if there are any relevant Family Law Act orders. This includes orders, plans, injunctions, undertakings, recognisances or other forms of obligation imposed or agreements made under the Family Law Act 1975 (Cth). If so, they will want to see the orders before making an interim intervention order.
An interim intervention order issued by the police requires the defendant to appear in the Magistrates Court (usually within 8 days) for the Court to decide if the order should be confirmed or revoked. See below Court procedure.
The Magistrates Court must be convinced it is reasonable to suspect that the defendant will commit an act of abuse. Your signed statement [for which you may use an Affidavit (Intervention Order) (Form 45)] is presented in court. According to the instructions on the form itself, it should contain:
- brief information about the background to your relationship with the defendant;
- details of the recent behaviour you are concerned about;
- details of any other incidents or threats which happened in the past;
- details of relevant existing or pending court orders (Family Law Act orders, agreements, plans, injunctions, undertakings; orders or agreements for division of property; Children’s Protection Act orders; any existing restraining order; any other legal proceedings between you);
- any weapons the defendant has.
The police (who usually act on your behalf - if not, you or your lawyer or representative) have to show the magistrate that it is more likely than not that the defendant will commit an act of abuse. This is called proving the evidence ‘on the balance of probabilities’. Your statement is the evidence.
In a domestic abuse situation where the application is contested, there are procedures to ensure the matter is resolved as quickly as possible. There will usually only be one adjournment to hear evidence. 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 [Magistrates Court Rules 1992 r 18.22].
If the police have not issued an interim intervention order then you, your representative or the police may apply to the Magistrates Court for an intervention order [using the Application for Intervention Order (Form 28)]. The application is filed in the Magistrates Court.
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 intervention order will be made. You may not need to attend if your application is made by the police. The police or your lawyer will tell you if you should attend. If you apply yourself, you must attend. 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 effective and you can tell the police if it is not obeyed.
4. Determination of the application
After the issuing of an interim intervention order by the police or the Court, the defendant will be required to appear in Court within 8 days (or within 2 days of the Court next sitting at that place). If the defendant is under 18, the hearing will be in the Youth Court. If the defendant does not appear at the determination hearing, the order will be made final. At this hearing the Court can:
- confirm the interim order already in place and make it final, without the need for further service on the defendant; or
- substitute the interim order for a final intervention order (this will occur if a term 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 contests the application, set another date for hearing evidence.
Note that while an intervention order is an order under civil law, jurisdiction to hear and determine them is vested in the criminal division of the Magistrates Court [see Magistrate Court Rules (Criminal) 1992 (SA) rule 4.07].
The Magistrates Court can order that evidence, including cross-examination or re-examination evidence, be given in a particular way for certain witnesses. Witnesses who can be protected by special procedures are: a person against whom it is alleged the defendant has or might commit an act of abuse, or a child who it is alleged has been or might be exposed to the effects of an act of abuse. Examples of what the Court can order are [see Intervention Orders (Prevention of Abuse) Act 2009 s 29(2)]:
- that the evidence be given outside the Court and transmitted to the Court by means of closed circuit television;
- that an audio visual tape be taken of the evidence outside the Court and replayed in the Court;
- that a screen, partition or one-way glass be placed to obscure the view of a party to whom the evidence relates or some other person;
- that the defendant be excluded from the place where the evidence is taken, or otherwise be prevented from directly seeing and hearing the witness while giving evidence;
- that the witness be accompanied by a relative or friend for the purpose of providing emotional support;
- if the witness suffers from a physical or mental disability, that the evidence be taken in a particular way to facilitate the taking of evidence from the witness or minimise the witness's embarrassment or distress.
The defendant is not able to ask questions directly of a person protected under the order. Nor are they able to directly question a child who has allegedly been exposed to abuse committed by the defendant. If the defendant is not legally represented, the defendant must first give the Court a list of cross-examination questions they wish to have asked and the Court will decide which questions are allowable. The questions are then asked by the Court or someone the Court nominates [see Intervention Orders (Prevention of Abuse) Act 2009 s 29(4)].
An intervention order (whether interim or final) commences only after it has been served on the defendant. This may be by way of personal service or if the defendant is present in court when the order is made. The court may authorise service on the defendant in some other manner if it wishes [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 21(8),(8a), 23(5), (5a)].
Where an order is varied, the amended order must be served on the defendant before it takes effect. Again it can be served personally or alternatively notification of the order will occur if the defendant is present in court when the order is made. The court may also authorise service on the defendant in some other manner [s 26(7), (7a)]. Until the varied order has been served on the defendant the order as was in force prior to the variation continues to be binding on them.
The Court will require information about any relevant court orders or legal proceedings (existing or pending) before making an intervention order.
Family Law Act orders
However, the Court may change (revive, vary, discharge or suspend) these Family Law Act orders when making an intervention order [see Intervention Orders (Prevention of Abuse) Act 2009 s 16].
The following types of Family Law Act orders will prevail over an intervention under unless otherwise ordered by the Magistrates Court:
- a parenting order, to the extent it provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child
- a recovery order or any other order under the Family Law Act, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child
- an injunction under sections 68B or 114 of the Family Law Act, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child
- to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child:- a registered parenting plan within the meaning of subsection 63C(6) of the Family aw Act- an undertaking given to, and accepted by, a court exercising jurisdiction under the Family Law Act- a recognisance entered into under an order under the Family Law Act.
If the Court wishes to change a parenting order, recovery order or injunction, it can only do so if it has evidence that was not presented to the court that made the original order [see Family Law Act 1975 (Cth) s 68R(3)]. This does not apply to a parenting plan, undertaking or recognizance.
Children's Protection Act orders
A person who contravenes a term of an intervention order in relation to an intervention program is guilty of an offence with a maximum penalty of a fine of $1 250 (expiation fee: $160).
If a protected person contravenes an intervention order, they are not guilty of an offence of aiding, abetting, counselling or procuring the contravention of an intervention order, as long as their behaviour does not involve another person protected by an intervention order imposed on the defendant. (This is different to the situation under the old domestic violence law.)
If a police officer has reason to suspect that a person has contravened an intervention order, the officer may arrest and detain the person. The person must be brought before the Court as soon as practicable, and not more than 24 hours after arrest, (but not counting weekends and public holidays) [see Intervention Orders (Prevention of Abuse) Act 2009 s 36].
At any time after the issuing of an intervention order, the police, a protected person or their representative may apply to the Magistrates Court to vary (change) or revoke (cancel) the intervention order. If the protected person is under the age of 14, a parent or representative may apply on their behalf. The police usually require that the protected person receive counselling before they will assist with an application to revoke (cancel) an order.
If the defendant wishes to apply to have the order varied or revoked, they must wait until the date set in the order. If there is no date in the order, the defendant must wait 12 months before applying for variation or revocation [see Intervention Orders (Prevention of Abuse) Act 2009 s 15].
Generally, when an application for variation or revocation is made, the Magistrates Court must allow the defendant and each person protected by the order a reasonable opportunity to be heard on the matter. However, on an application by the defendant, the Court may dismiss the application without hearing evidence from the protected person if satisfied that the application is frivolous or vexatious, or if there has been no substantial change in the relevant circumstances since the order was issued or last varied.
An intervention cannot be varied by removing a firearms term unless the court is satisfied that the defendant has never been guilty of violent or intimidating conduct and needs a firearm to earn a livelihood.
A varied order only takes effect when served upon the defendant.
An intervention order can be appealed to the Supreme Court within 21 days of the Magistrates Court making an order in relation to the intervention order. However, permission to appeal would ordinarily need to be requested and granted before an appeal itself is heard.
As there are cost risks associated with an unsuccessful appeal, legal advice should always be sought before commencing an appeal (which would include a request for permission to appeal).
Although intervention orders are not criminal in nature, the Magistrates Court Rules 1992 (Criminal) (SA) provide that the jurisdiction to hear and determine them is vested in the Criminal Division of the court [see Rule 4.07]. A party to an action in the criminal division of the Magistrates Court (including an intervention order) can appeal against a judgment [see Magistrates Court Act 1991 (SA) s 42]. That appeal lies to a single Judge of the Supreme Court of South Australia [s 42(2)(b)], and must be lodged within 21 calendar days of the date of the judgment being made in the Magistrates Court [Supreme Court Civil Rules 2006 (SA) Rule 281; see also Supreme Court Criminal Rules 2014 (SA) Rule 6 which states that the Supreme Court Civil Rules govern criminal appeals before a single Judge].
If an application is made after the 21 calendar day time limit, an extension of time would need to be sought and granted in addition to permission to appeal being sought and granted.
Permission to appeal must be requested together with the appeal as case law has determined that the action of a Magistrate in making a judgment on an intervention order (including ordering a final intervention order) is an interlocutory judgment [see Magistrates Court Act 1991 (SA) s 42(1a); Groom v Police (No. 3)  SASC 93; Marley-Duncan v Police  SASC 146]. Permission may be granted where there are special reasons why it would be in the interests of justice to have the appeal determined [Magistrates Court Act 1991 (SA) s 42(1a)(c)]. For these types of cases, this means that there must be at least an arguable case for the appeal [see Thakur v Police  SASC 75 at ].
A confirmed intervention order will remain in force until an appeal is determined.
Local and interstate intervention orders are recognised and enforceable nation-wide under provisions in the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
Non-local DVOs (interstate orders) may be enforced in South Australia if they have been declared by a court in another jurisdiction as a recognised DVO. Similarly, South Australian orders that have been declared as a recognised DVO can be enforced in other states.
Registration of an intervention order is automatic if the court declares, when the order is made, that it addresses a domestic violence concern [s 15A]. This is to distinguish from other orders made under the Act that address non-domestic concerns. These are currently unable to be recognised and enforced throughout Australia. See Non-domestic abuse intervention orders.
Under section 29P of the Act a court has the power to revoke or vary a recognised non-local (interstate) DVO as if it were a local (South Australian) order.
Where a defendant has been disqualified from holding a firearms licence on a recognised non-local (interstate) DVO the disqualification applies in South Australia. Similarly, if there are any licence or permit suspensions or revocations on an interstate order these will apply in South Australia [ss 29M, 29N].
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 DVO 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]
All domestic violence orders issued after commencement of the provisions allowing national recognition will automatically be recognised. However, 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].
New laws have been introduced to allow victims of domestic violence to terminate residential tenancy agreements and to ensure that they are not financially penalised by the actions of an alleged abuser.
Depending on whether you want to stay or to leave the premises, you will need to make an application to the South Australian Civil and Administrative Tribunal. An information leaflet is available at Consumer and Business Services.
For further details of the options available see Intervention orders and tenancy issues in the Housing chapter.
The Court Administration Authority of South Australia has produced a video called Intervention Orders Application - Stop the Violence (18:10). The video follows three individuals (and those around them) as they navigate the various processes, such as where:
The video is available to view either on:
Do the Family Law Courts take family violence into account?
Yes. In making parenting orders in the best interests of a child, the Court must give the greatest consideration to the need to protect the child from physical or psychological harm (from being subjected to, or exposed to, abuse, neglect or family violence) [see Family Law Act 1975 (Cth) s 60CC(2A)].
The Court must also consider:
- any intervention order involving the child or a member of the child's family [s 60CC(3)(j)]
- if an intervention order applies, or has applied to the child or a member of the child's family, any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which it was made, the evidence admitted and findings made in proceedings for the order and any other relevant matter [s 60CC(3)(k)].
This aims to resolve conflicts between intervention orders made by the State Magistrates Court and parenting orders made by the Family Law Courts, ensuring that people are not exposed to violence and also that the right of the child to have a meaningful relationship with both parents is respected.
When a Family Law Court makes a parenting order that is inconsistent with an intervention order, the Court must arrange for an explanation of:
- the purpose of the contact order
- the obligations that the order creates
- the consequences that may follow if there is failure to comply
- the reasons for the making of the order inconsistent with the intervention order, and,
- the circumstances in which the Family Law Act 1975 (Cth) order may be varied or revoked.
For the purposes of the Family Law Act 1975 (Cth) family violence is any "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family, or causes the family member to be fearful" [s 4AB].
It sets out the following range of examples:
- an assault
- a sexual assault or other sexually abusive behaviour
- repeated derogatory taunts
- intentionally damaging or destroying property
- intentionally causing injury or death to an animal
- unreasonably denying the family member financial autonomy
- unreasonably withholding financial support at a time when the family member is entirely or predominantly dependent
- preventing the family member from making or keeping connections with his or her family, friends or culture
- unlawfully depriving a family member his or her liberty
When the Magistrates Court considers that a parenting order made by the Family Law Courts may affect the safety of a person seeking an interim intervention order or the safety of a child who may be at risk of or exposed to abuse, the Magistrates Court may revive, vary, discharge or suspend that parenting order for a time specified in the interim intervention order [Family Law Act 1975 (Cth) s 68T(1)].
When making a final intervention order, a Magistrates Court may change a parenting order, but it can only do so if it has evidence that was not presented to the court that made the original order [see Family Law Act 1975 (Cth) s 68R(3)].
Also, the Intervention Orders (Prevention of Abuse) Act 2009 (SA) requires that the Magistrates Court must, when considering making an intervention order be informed of any relevant Family Law Act order, and consider the effect of any intervention order on the contact between the person seeking the intervention order or the defendant and any child of, or in the care of, either of them.
The Family Law Courts have the power to grant injunctions restraining one party from molesting, assaulting, harassing or interfering with the other party or with the children and from entering upon premises occupied by the other party [see Family Law Act 1975 (Cth) s 68B].
In some exceptional circumstances the Family Law Courts may evict one person so that the other person can have the sole occupancy of the home [see Family Law Act 1975 (Cth) s 114]. To obtain an injunction there must be evidence of threats, physical and/or verbal assault or threats to the welfare of the children. The injunction may be granted ex parte (that is after hearing only one of the parties) in urgent cases. Injunction orders can be made within a week if extremely urgent. In the usual course it may take a few weeks. Because the allegations must be put in affidavit (written) form, it is recommended that the applicant have a lawyer.
A police officer, who believes on reasonable grounds that a person has breached an injunction by threatening or causing injury, can arrest that person without a warrant [see ss 68C and 114AA]. However, normally the applicant must apply back to the Family Law Courts, and a contravention or breach of the order must be proven for the offending party to be punished. The penalty can be a fine or a bond (to forfeit money if the order is broken again). People who refuse to enter a bond can be imprisoned for up to three months. It usually takes a considerable amount of time from the initial application for contravention until the final determination of the matter by the Family Law Courts. Anyone seeking this type of order should have a lawyer.
It is recommended that where family violence is being experienced, an intervention order is much more effective and should be sought first. An intervention order can be sought even if there is a current injunction order in place from the Family Law Courts. It can also be more immediately and directly enforced by State police, rather than through the family law system. An injunction from the Family Law Courts can not be instituted if there are current intervention orders in place or proceedings are currently underway.
While it is always advisable for a victim of family violence to ensure they are safe from a perpetrator and to avoid any situation where contact may result in a recurrence of violence, this is not easy if there are children of the relationship. There is some evidence that the Family Law Courts are willing, at least temporarily, to suspend contact in more serious cases of violence until adequate arrangements are in place. However, it is unlikely that the Court will suspend contact indefinitely.
The best protection for a person afraid of violence is to alter the arrangements for contact so that the person need not be present when the children are collected or returned. This can be arranged through friends or relatives or someone else who can be present when the children are handed over for contact. Many people arrange for children to be picked up and returned at police stations or other public places.
Existing parenting orders can be varied to include new arrangements so that potentially violent situations may be avoided.
A State Magistrates Court may alter contact arrangements temporarily as part of an interim intervention order. If the Magistrates Court has evidence before it that was not presented to the Family Law Court then the Magistrates Court may change the parenting order as part of a final intervention order. See What can State Magistrates Courts do?
Family violence is not in itself a criminal offence. However, family violence may give rise to various charges. In addition to criminal offences such as assault, assault causing actual or grievous bodily harm, intent to do grievous bodily harm, indecent assault, rape, sexual assault or attempted murder, there are a number of offences specifically aimed at domestic violence, including:
If someone is charged with an offence relating to family violence, bail conditions must be set with primary consideration for the victim.
For the purposes of family violence law, a "family member" is defined as a: (a) spouse or former spouse (including an opposite sex de facto spouse) of the offender; (b) child of whom the defendant or a spouse or former spouse of the defendant has custody as a parent or guardian; (c) child who normally or regularly resides with the defendant or a spouse or former spouse of the defendant;
An intervention order, while not a criminal charge, may also be an appropriate response to family violence.
Family violence is a crime and should be reported to the police immediately or as soon as possible. If an assault, or some other offence is committed, the police should charge the offender. The police have a duty to arrest and charge anyone they reasonably suspect has committed a crime. An offender who is released by the police should be placed on bail.
Any person who obtains an intervention order from the State Magistrates Court or an injunction from the Family Law Courts should take a copy of the order to the local police station so that they are familiar with the case if police help is needed in the future. They should also keep a copy of the orders with them so that they can show police if it is necessary for the police to be called. If the perpetrator has been convicted and released on a bond with conditions, again it is advisable to alert the local police to those terms and conditions.
While it is an offence for anyone to assault someone else, if the victim was, at the time the offence was committed, a family member of the offender the maximum penalty has been increased to three years imprisonment [Criminal Law Consolidation Act 1935 (SA) s 20].
If an assault or other offence has been committed, the police should charge the offender. Problems may arise with the willingness of the victim to testify against her or his spouse. Promises that 'things will be better in the future' and 'it will never happen again' can be very convincing for some victims.
Where the victim is a family member of the alleged offender, the offence is classified as a minor indictable offence. This gives the alleged offender the right to either have the matter dealt with in a summary court or to elect for trial before a jury in the District Court, see CRIMINAL AND TRAFFIC OFFENCES, Types of Crimes and Courts. This may create difficulties for a victim who does not suffer any visible evidence of injury. The case may amount to the word of the victim versus the word of the alleged offender. The jury's response may well be a reflection of the community's attitude towards family violence which, in the past, has been to view it as within the private sphere and not subject to public disapproval. The victim's case will be strengthened by other evidence which will support the claim. For example, evidence of the effect of blows on the victim's body may be given by a doctor and this evidence will have more weight if the doctor is seen as soon as possible after the assault. Photographs may also be of great assistance and any eye witness account by neighbours or friends or anyone present at the time.
The court must, as far as practicable, deal with proceedings for intervention orders as a matter of priority.
See also the Criminal Law chapter of the Law Handbook on Assault.
There has in the past been considerable concern over the inability of the police to intervene where a person 'stalks' someone. Legislation has been enacted which makes stalking an offence [Criminal Law Consolidation Act 1935 (SA) s 19AA]. Behaviour defined as stalking includes:
- following another person
- loitering outside the home of another person or a place frequented by the other person
- entering or interfering with property in the possession of another person
- giving or sending offensive material to another person, or leaving it where it will be found by, given to or brought to the attention of the other person
- publishes or transmits by means of the internet or some other form of electronic communication in such a way that it will be found by, or brought to the attention of the family member
- communicates with the family member or other members of the family by way of mail, telephone (or associated technology), facsimile transmission or the internet or some other form of electronic communication
- keeping another person under surveillance
- acting in any other way that could reasonably be expected to arouse another person's apprehension or fear.
It is very difficult to prove a person is guilty of stalking as the police will have to show that these behaviours occurred on at least two separate occasions and that the 'stalker' intended to cause either:
- serious physical or mental harm to another person or a third person, or
- serious apprehension or fear.
In some instances the mental element of the stalker is more squarely focused on 'possessiveness' and 'love' rather than any intention to cause serious physical or mental harm or serious apprehension or fear.
A person found guilty of stalking faces a maximum penalty of three years gaol, or five years gaol where there is either:
- a breach of an order (such as an intervention order or Family Court injunction), or
- when stalking, the person possessed an offensive weapon.
A person who is charged with stalking is to be taken to have been charged in the alternative with offensive behaviour. This means if the court finds the charge of stalking is not proved but is satisfied that the lesser charge of offensive behaviour is established, the court may convict the person of that charge.
Where stalking involves actions online or cyber bullying, or the posting or threat to post invasive images online, then reports may be made to the Office of the eSafety Commissioner - see Office of the eSafety Commissioner for more information.
The police may arrest someone whom they suspect has contravene an order.
A person will not be charged with aiding or abetting a contravention of an intervention order if the person is protected by the intervention order (i.e. a protected person) and their conduct in contravening the order did not result in contravention in respect of any other person who is protected by the order (or any other intervention order) in force against the defendant [Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(3)].
The victim should always report any and all breaches of an intervention order to the police and ask that the police give them the report number. It is up to the police to decide what action, if any, is to be taken when a breach is reported. If a minor breach is reported police may warn the defendant about his behaviour and give a warning of the consequences of a further breach. It is also more helpful if police are able to show a Court that the defendant has engaged in an ongoing pattern of behaviour if charges are laid for breaching an intervention order.
See also the Law Handbook's Criminal law chapter on Breaching an intervention order.
Once a crime is reported to the police it is up to them, not the victim, whether to proceed or not. A person arrested and charged by the police will be prosecuted by the police or the State Crown Prosecutor (depending on the seriousness of the offence). They will decide how the case is conducted and the victim will have no real say in the matter and often will have little contact unless the person charged pleads not guilty.
The case will first come before the Court for a short hearing (called a first return day or mention). If the person (the defendant) was arrested, this will usually be within a few weeks after the charge is laid, or the very next day if the defendant was not granted bail. Defendants who are not arrested will receive a summons about four weeks after the incident and will have to appear in court about four weeks after receiving the summons.
The first hearing is only to allow the Court to find out what each side intends doing about the charge and is not a full hearing of the case. The defendant is asked to plead guilty or not guilty. If pleading guilty the Court will listen to the police facts, hear what the defendant or that person's lawyer has to say about those facts or the appropriate punishment and then impose a punishment. The prosecutor will give to the Court a victim impact statement which tells the Court the effects of the offence on the victim. If the defendant pleads not guilty, the Court will set a new hearing date (the trial date) which will be months away and in the majority of cases, release the defendant on bail until then, see: ARREST, YOUR RIGHTS AND BAIL, Bail. The defendant may also ask the Court to adjourn the hearing to enable legal advice to be obtained. The defendant can usually seek up to three adjournments.
The victim will usually be the main and sometimes the only witness to the violence and her or his evidence will be vital to the prosecution case; and without it the case will usually be dismissed. To prove a charge the police will have to prove the case beyond any reasonable doubt.
A defendant who is found guilty of a charge or who pleads guilty, may be imprisoned, fined, or put on a good behaviour bond.
- approach, harass or molest the victim;
- come within a certain distance of the victim's work place or home (which is obviously not appropriate if they are either still living together or working in the same place);
- telephone, write or otherwise contact the victim except through a lawyer or some other person.
When a person applies for bail, primary consideration must be given to any need the victim may have, or perceive to have, for physical protection from the applicant.
See further the Law Handbook's detailed section on Bail.
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.