Intervention Order (Restraining Order) Lawyers – Adelaide
The Intervention Orders (Prevention of Abuse) Act 2009 (SA) replaced the previous provisions under the Summary Procedure Act 1921 and Domestic Violence Act 1994. The new Act introduced significant changes to improve the protection of individuals; these included the imposition of additional obligations upon the Court to notify various agencies, and the provision of additional powers to the police to issue Interim Intervention Orders without a Court Application.
Who can be protected by an intervention order?
Any person (including a child) can be protected by an Intervention Order, even if they do not apply for protection themselves. Any child who may hear or witness abuse may also be protected by an Intervention Order.
Who can apply for an intervention order?
The police, and 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.
Recognition of intervention orders
New laws have been introduced across Australia so that all Intervention Orders (which are domestic violence-related) made on or after the date in which the laws came into effect, will be nationally recognised and enforceable. This means the Order will apply wherever you may be in Australia, and wherever your order is issued, and regardless of which state or territory a defendant resides.
If you have an Intervention Order (which is domestic violence-related) issued before 25 November 2017, and you would like it to operate nationally, you can apply to any court to have your order declared.
When is an intervention order appropriate?
A range of factors must be considered to determine whether it is appropriate to issue an Intervention Order, and determining its terms. The legislation is anticipatory in nature and as such is aimed at reducing the risk of abuse if there is sufficient reason to suspect harm may occur. Regardless of whether the nature of abuse is overt or subtle, an isolated incident or an ongoing pattern of behaviour, the priority for the police and the Court is to prevent the abuse from happening.
Unlike the previous Restraining Order legislation, there is no requirement to show evidence that actual harm has already occurred or threats have already been made. To justify an Intervention Order, the protected person will need to indicate what potential behaviour the defendant may be suspected of committing. It is most often the case, however, that an Intervention Order is put in place once an act of abuse has occurred.
Interim intervention order
If you urgently need protection, call the Police on 000.
The police can issue an Interim Intervention Order if the defendant is present or in custody. You will be protected as soon as the defendant is notified without having to go to court first.
For police attendance in less urgent cases call 131 444.
If you don’t require immediate protection, or if the police don’t grant you an Interim Intervention Order, you can apply to the Magistrates Court for an Intervention Order. The Court must be sure it is reasonable to suspect that the defendant will commit an act of abuse.
Ongoing intervention order
Once an Interim Intervention Order is made, the defendant will be required to appear in the Magistrates Court (usually within 8 days), for the Court to decide if the Order should be confirmed (an Ongoing Intervention Order) or revoked.
Can an intervention order be challenged?
It is worth noting that laws relating to Intervention Orders have changed in recent times and police can now exercise greater powers in the issuing of such orders. However, defendants are entitled to a court hearing if they wish to challenge an order. Once confirmed, an intervention order is in place for life or until revoked. The ability to have an order revoked is now far more difficult than it once was.
If you have been served with an Intervention Order you must act quickly as strict time frames apply to the proceedings. Obtaining advice as to whether you may be successful in challenging the Order, and assistance through the process from an experienced Scammell & Co. lawyer is highly recommended.
Domestic and non-domestic abuse
Both domestic and non-domestic situations are covered by the Intervention Orders (Prevention of Abuse) Act 2009 (SA). Domestic abuse is where an act of abuse is committed by the defendant against a person whom they are or were in a domestic relationship with. For the purposes of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), two people are in a relationship if:
- they are married or de facto partners; or
- they are in some other form of intimate personal relationship in which their lives are interrelated; or
- one is the child, stepchild or grandchild, or is under guardianship, of the other (regardless of age); 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 stays or resides with the other; or
- they are siblings; or
- they are otherwise related 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 of the other.
Domestic abuse cases must be dealt with as a matter of priority.
Non-domestic abuse is defined as an act of abuse committed by a defendant against a person with whom the defendant is not, and has not, previously been in a relationship with.
What constitutes abuse?
The Intervention Orders (Prevention of Abuse) Act 2009 (SA) recognises that abuse can take many forms including:
- actual physical injuries or actions intended to injure you or your family members;
- Sexual abuse or harassment;
- Emotional or psychological harm;
- An unreasonable and non-consensual denial of financial, social or personal autonomy;
- Damage to property owned, possessed or otherwise enjoyed by the person any abuse is aimed at; and
- Indirect abuse where a). A defendant threatens to hurt someone close to you and this makes you distressed; and /or b). A person causes someone else to abuse you.
What restrictions can be ordered?
Intervention Orders (including Interim Intervention Orders) can prevent someone that is harassing, threatening or abusing you from having contact. This can include:
- Not being allowed to come to your home or place of work;
- Not being permitted to go to your children’s school;
- Not being able to phone you;
- Not being allowed to send you messages; and
- Not being permitted to follow you or keep you under surveillance.
An Intervention Order can also require a defendant to do certain things, and may include certain conditions or exemptions.
Additional Orders also relate to:
- Firearms terms (mandatory)
- Intervention programs
- Tenancy agreements
- Problem gambling
- Application for variation or revocation
Intervention Orders are made to suit you and your situation.
Breach of an Intervention Order
Whilst an order falls under civil law (in that it is not a criminal charge), it is a criminal offence for a defendant to breach an Intervention Order and as such penalties may apply, including imprisonment. A breach may even occur if the protected person consents to the contact. If a police officer has reason to suspect that a person has contravened an Intervention Order, the officer may arrest and detain that person. The person must be brought before the Court no more than 24 hours after arrest (excluding weekends and public holidays).
Changing or cancelling an Intervention Order
Either the police, a protected person or their representative may apply to the Magistrates Court to vary or revoke an Intervention 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 then the defendant must wait 12 months from the date of the Order before applying.
Before varying or revoking an Intervention Order, the Magistrates Court must allow the police, the defendant and the protected person(s) the opportunity to be heard on the matter.
In the case of an emergency call the police: 000
For police attendance: 131 444
Domestic Violence Crisis Line: 1800 800 098