It is imperative that a person calls 000 or contacts a Family Violence Unit within SAPOL if at risk of imminent or serious physical harm.
The meaning of domestic and non-domestic abuse is defined in the Intervention Orders (Prevention of Abuse) Act 2009 in South Australia. Abuse may take many forms including physical, sexual, emotional, psychological or economic abuse that causes or is intended to cause physical injury, emotional or psychological harm, an unreasonable and non-consensual denial of financial, social or personal autonomy or damage to the person's property.
Intervention orders can be issued by the South Australian Police (SAPOL), usually in response to violence or physical threats to safety.
In instances where SAPOL have not proceeded with an intervention order a private application can be made to the Magistrates Court of South Australia. A private application for an intervention order requires a sufficiently detailed and evidenced affidavit to meet the appropriate legislative threshold. We are experienced in assessing an application's merit.
The legal process. What to expect.
Following the submission of a private application for an intervention order to the Magistrates Court a date will be listed for a preliminary hearing at which the applicant must be present. If represented, their solicitor will also attend to advocate on their behalf. The defendant is not present. The Magistrate will consider the evidence, in the form of the affidavit provided with the application but may ask to hear further oral evidence from the applicant. Upon determination of the evidence the Court may issue an interim intervention order and the applicant is then named a protected person, or the Court may dismiss the application.
If the order is issued the Court must require the defendant to appear before the Court, if practicable, within 8 days after the date of the order. If represented by a solicitor the protected person is not usually required to attend at this hearing. SAPOL will be notified by the Court’s Principal Registrar to effect service on the defendant, at which time the order becomes immediately effective and the defendant must adhere to all terms of the order.
A breach of any of the terms is a criminal offence. Contravention of an Intervention Order carries a maximum penalty of $10,000 or imprisonment for 2 years. Where the contravention involves physical violence or a threat of physical violence, the maximum penalty is $20,000 or imprisonment for 4 years.
The order remains an interim order until either confirmed as a final order or is dismissed by the Court. We have a proven track record for achieving results through constructive negotiation, avoiding drawn out court proceedings reducing costs and emotional stress.
At a time it becomes apparent no resolution is likely, a date for a pre-trial conference is set in preparation for trial.
The protected person is required to attend at trial. A vulnerable witness application can be made so that measures are put in place such as remote attendance via CCTV. An unrepresented defendant cannot directly address the protected person but must provide submissions to the Court which will be directed to the witness as deemed appropriate by the Magistrate.
At the conclusion of the trial the Magistrate will determine that the order is made final or the application is dismissed.
A final order remains in effect indefinitely. By legislative default the defendant cannot apply for a variation or revocation of the order for 12 months after the date of issue or variation of the order. The Court must allow the protected person a reasonable opportunity to be heard on the matter.
The objects of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) are to assist in preventing domestic and non-domestic abuse, and the exposure of children to the effects of domestic and non-domestic abuse. However, individual circumstances must be considered to determine the appropriate jurisdiction for matters pertaining to children. Considerations include but are not limited to whether any relevant Family Law Act order or State child protection order of which the issuing authority has been informed; how the intervention order would be likely to affect contact (in accordance with a relevant Family Law Act order or State child protection order or otherwise) between the protected person or the defendant.
Recognition of interstate orders.
On 25 November 2017 the National Domestic Violence Order (DVO) Scheme came into effect to facilitate protection beyond the issuing jurisdiction, so that a South Australian order (that addresses a domestic violence concern) issued after this date is enforceable nationwide.
For orders (that address a domestic violence concern) issued before the scheme commenced, the protected person may apply to any local court in Australia for such a declaration.