How can an Intervention Order protect victims of abuse, and what are the consequences for breaches?
Under South Australian law, the Courts can take action against a person who causes fear of violence, intimidation, or harassment. The Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the “Act”) identifies abuse in all its forms including: physical, emotional or psychological harm; denial of financial, social, or personal autonomy; property damage; and technology-facilitated stalking or abuse.
An application for an Intervention Order can be made by the Police or a person seeking protection.
If a person is in imminent harm and in need of urgent help, they can contact the Police. Based on credible evidence the Police can issue an Interim Intervention Order and serve this on the other person (the respondent). The order includes a summons for the respondent to appear in court for a Magistrate to determine if a permanent order is appropriate.
Alternatively, Police may apply for a Court issued Intervention Order on behalf of a victim, if there has been behaviour toward them which amounts to a criminal offence (or the threat of a criminal offence).
In both cases, the Police will submit the application to the Court, prepare all necessary documentation and attend court hearings.
A person can also make a private application which requires the applicant to provide an affidavit with evidence that supports their claims of abuse. The application is then considered by a Magistrate, who can make an Interim Intervention Order until the matter is heard by the Court. At the hearing, the Magistrate will listen to the evidence and decide whether to issue a final Intervention Order. A lawyer can advise and assist with this process.
An Intervention Order can include conditions that restrict a respondent’s ability to approach, contact, intimidate, or harass a protected person. The respondent must comply with all conditions in the order.
A person who contravenes an order is guilty of an offence with a maximum penalty of imprisonment for 3 years for a basic offence and 5 years for an aggravated offence. Harsher penalties apply for physical violence (or the threat of physical violence) as well as second or subsequent contraventions in a 5-year period, with a maximum penalty of 7 years for a basic offence and 10 years for an aggravated offence. Fines of up to $2,000 may also apply.
At any time after the issuing of an Intervention Order, either the Police or a protected person may apply to the Court to vary or revoke the order. If the respondent wishes to apply to have the order varied or revoked, they must wait until the set date in the order. If there is no date in the order, a twelve-month waiting period applies. A lawyer can also assist with this application.
The laws have been strengthened to send a clear message to perpetrators of abuse that breaching an Intervention Order is a serious offence and will not be tolerated. The Act is in place to protect victims of domestic and family violence – the ramifications of which, can have a severe impact on victims, affecting their physical, emotional, and mental well-being.
For further information about how a Scammell & Co lawyer can assist with Intervention Orders and answers to frequently asked questions, please follow the link HERE
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.
The use of colloquial Aussie language could constitute threatening behaviour
An Adelaide man recently lost a Supreme Court appeal against an Intervention Order placed upon him by the District Court of South Australia. The Intervention Order came about after the gentleman sent his former lawyer a series of threatening emails and letters peppered with Aussie colloquialisms that were taken as direct threats.
In one such instance, the gentleman emailed his lawyer saying he wanted to give a summons to her personally so she could “bend over and I can stick it up your arse”. In another instance, the gentleman referred to the perpetrator of the Port Arthur massacre, claiming that he “truly understood the Martin Bryant’s of this world”.
In his defence, the gentleman claimed that he was simply reverting to the use of “Australian English” and that the threats he issued against his former lawyer were misunderstood.
Offensive or threatening language is addressed under the Criminal Law Consolidation Act (SA) 1935. Regardless if the language used is intentionally threatening or not, if it is unwanted and has the purpose or affect of violating one’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person it is directed at, then it is likely to amount to harassment. Moreover, a person who threatens to cause harm to another, or creates fear that a threat will be carried out, is committing a criminal offence. The maximum penalties for someone found guilty of such an offence is 5 years imprisonment for a basic offence, or 7 years imprisonment for an aggravated offence.
At the gentleman's hearing, Justice Sandi McDonald, dismissed his appeal against the Intervention Order, saying in her summary, “it was not unreasonable to suspect that, given [the defendant's] feelings towards the protected person, that he will, without intervention, commit an act of abuse against the protected person in the future.” Justice McDonald went on to say that “the material referred to in those allegations contained offensive material constituting an abuse”.
An experienced Scammell & Co lawyer can assist clients with Intervention Order applications, variations, and revocations. They will also diligently represent either protected person(s) or defendants in any court proceedings. For further information about Intervention Orders please click here
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.
Tougher penalties for breaches of intervention orders to come into effect
The Statutes Amendment (Intervention Orders and Penalties) Bill 2021 has passed both Houses of SA Parliament and awaits assent to become law. The changes to come into effect can be described in three broad categories:
- The penalties for contravening an IO will be increased.
- The definition of an ‘aggravated’ offence under the Intervention Orders (Prevention of Abuse) Act 2009 will be inserted.
- A contravention of an IO, involving physical violence or a threat of physical violence, will be prescribed as a ‘serious offence’ for the purpose of sentencing serious repeat offenders.
The maximum penalties for contravening an IO, other than terms in relation to an intervention program, will increase from $10,000 or 2 years imprisonment to 3 years imprisonment for a basic offence and 5 years imprisonment for an aggravated offence.
The maximum penalties for a second or subsequent contravention, or a first contravention involving physical violence or a threat of physical violence, will increase from $20,000 or 4 years imprisonment to 7 years imprisonment for a basic offence and 10 years imprisonment for an aggravated offence.
The definition of an ‘aggravated’ offence will be inserted to include circumstances where the offender knew, suspected or ought reasonably to have known or suspected that a child would see, hear or otherwise be exposed to the conduct constituting the offence or to any effects of that conduct. This is a broad definition. For example, it might include circumstances where a child is exposed to the lasting effects of abuse after the offending conduct has ceased.
If a person is convicted of contravening an intervention order involving physical violence or a threat of physical violence at least three times, the court will not be bound to ensure that the sentence is proportional to the offence and must impose a non-parole period of at least four fifths the length of the sentence.
If you require legal advice in respect of intervention order matters, please contact one of our team on (08) 8447 4466.
For further information on Intervention Orders (restraining orders) please click here.
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.
Proposed domestic violence bill not necessarily the answer to shared custody disputes
A private member’s bill has been introduced into parliament by Federal Labor MP Graham Perrett in response to the shocking murder of Brisbane woman Hannah Clarke and her three children at the hands of her former partner.
The family law bill aims to remove what Mr Perrett describes as confusing laws around child custody arrangements.
As it is, the family law assumes parenting should be shared equally between parents who have separated - regardless of either party’s conduct or history of domestic violence.
Mr Perrett told parliament “There is a widely held misconception that equal shared responsibility means equal shared care. ”
“This misconception sets up a false expectation that parents have some right to guaranteed equal time with their children. “
“This can incentivise an abusive partner to litigate their parenting dispute. It may lead to a parent agreeing to an unsafe parenting arrangement, in the belief that they have no choice.”
Scammell & Co. have a highly experienced Family Law team providing child custody advice and best outcomes to parents going through a separation or divorce. Please contact us either by calling 8447 4466 or via email: reception@scammell.com.au to arrange a confidential intial appointment.
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.
An ex is threatening to share intimate images of you. Know your rights.
The sharing of intimate images (sometimes referred to as 'sexting') is the act of taking sexually explicit photographs or video and distributing them to another person (or persons) via mobile phone or other online communication method. Even though the intimate images may have been initially taken with the consent of the person/s featured in the image (including if the images were 'selfies'), once this content has been made and initially distributed, the person (or persons) featured in the material loses control of it. Such material can easily be redistributed to anyone else or made public without the consent of the person/s featured in the images or video.
The non-consensual sharing of intimate images (whether express or implied) can be used to coerce, control, abuse, blackmail, humiliate, intimidate or harass another person. As such, it can have a serious impact on victims, including psychological injury and trauma, as well as a loss of reputation, social standing, or employment.
In South Australia, under the Intervention Orders (Prevention of Abuse) Act 2009 (SA), it is a criminal offence to distribute, or threaten to distribute, intimate photographs or videos of another person without their prior consent.
If you have not consented to the publication or distribution of any intimate material, we recommend that you contact the police and report the offence. Based on your statement the police may decide to lay criminal charges against the person who has shared (or is threatening to share), inimate photos or video of you.
Given the seriousness of this offence you should also consider obtaining an Intervention Order (often referred to as a Restraining Order), against the person making such threats. This will prevent him/her from making any further threats towards you.
An intervention order is a court order made against a person - including a current or former spouse or defacto partner or someone you have been in an intimate relationship with, who has physically abused you, made threats of violence towards you or intimidated you in some way. The person you fear (known as the defendant) must obey the order made by the court. An intervention order has certain conditions which can make clear that the defendant must not assault, harass, or intimidate you. An Intervention Order can also say that the defendant must not contact you via telephone, email or online, or attend your home or workplace.
It may also be appropriate to name other people, such as children or other family members as protected persons, when applying for an Intervention Order.
The person's threatening behaviour is a form of “violence” under the Act, which is given a broad definition. It may also be possible to obtain an injunction for personal protection thereby prohibiting your ex from engaging in further threatening behaviour and/or posting any intimate photographs or videos of you online.
For further information on Intervention Orders please click here
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.