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)].
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.