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.
In an emergency: 000
For police attendance: 131 444
The police have the power to issue an interim intervention order if the defendant is present or in custody. This gives 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. The victim's signed statement [for which an Affidavit (Intervention Order) (Form 45) is used] is presented in court. Forms are available to download from the website of the Courts Administration Authority. According to the instructions on the form itself, it should contain:
The police (who usually act on a victim's behalf - if not, the victim or their 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’. The victim's statement is the evidence.
In a domestic abuse situation where the application is disputed, 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 an applicant, their representative or the police may apply to the Magistrates Court for an intervention order [the applicant may use the Application for Intervention Order (Form 28AA) or their representative and the police may use the Application for Intervention Order (Form 28)]. Forms are available to download from the website of the Courts Administration Authority. The application is filed in the Magistrates Court.
The application must be supported by evidence which may consist of an affidavit in Form 45, or oral evidence in person or by video link [Magistrates Court Criminal Rules 1992 (SA) r 18.05].
From 2 September 2019 onwards, an application by a police officer for the making or variation of an intervention order may also be supported by recorded evidence of the protected person (audio or audio visual) if the interests of justice require and it is permitted by the Court [see Intervention Orders (Prevention of Abuse Act 2009 (SA) and Magistrates Court Criminal Rules 1992 (SA) r 18.05AA]. The protected person cannot be further examined, cross-examined or re-examined on the recorded evidence without the permission of the Court [s 28A(2)(b)]. For more information about access to recordings, see Recorded Evidence.
2. Preliminary hearing
At the preliminary hearing, a magistrate will read the applicant's statement and/or hear the evidence, and if he or she decides there is enough evidence, an interim intervention order will be made. The applicant may not need to attend if the application is made by the police. The police or the applicant's lawyer will advise the applicant if they are required to attend the hearing. If the applicant has made a private application (i.e. applied for the order themselves), they 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 any breaches can be reported to the police.
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:
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].
From 2 September 2019 onwards, an application by a police officer may also be supported by recorded evidence (audio or audio visual) of the protected person if the interests of justice require and it is permitted by the Court [Intervention Orders (prevention of Abuse) Act 2009 (SA) s 28A and Magistrates Court Criminal Rules 1992 (SA) r 18.05AA]. The protected person cannot be further examined, cross-examined or re-examined on the recorded evidence without the permission of the Court [s 28A(2)(b)].
If the police intend to ask the court to permit recorded evidence, the police may give the defendant access to the recorded evidence which may be unrestricted or restricted [See Intervention Orders (Prevention of Abuse) Act 2011 (SA) s 28A and Intervention Orders (Prevention of Abuse) Regulations 2011 (SA) regs 4BB and 4BC]. If access is restricted the police will give the defendant a “recorded evidence access notice” and listening and/or viewing will be under the supervision of a police officer and may be subject to other conditions to prevent unauthorised reproduction or dissemination of the recording. It is an offence to contravene a condition of access with a maximum penalty of a fine of $5000 [reg 4BB].
Anyone who has possession of, or access to, recorded evidence must not allow access by another person except for the purposes of the proceedings, by a public official for the purposes of official functions or as may be authorised by the police officer who made the application for the intervention order or its variation. It is an offence to refuse or fail to comply with these requirements [reg 4BC].
If a language other than English is used in the recording, the statements must be translated into English in the recording or in a transcript made at a later time and the transcript provided with the recording [reg 4BA]. An interpreter’s affidavit is required as to the accuracy of the translation and the Court may require further verification.
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 (SA) s 29(2)]:
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 (SA) s 29(4)].
If evidence has gone before the Court by way of audio or audio visual record of the protected person, the protected person may still be further examined, cross-examined or re-examined, but only with the permission of the Court [s 28A(2)(b)]. For more information about recorded evidence, see Recorded Evidence.
In an emergency: 000
For police attendance: 131 444
Domestic Violence Crisis Line: 1800 800 098
1800 RESPECT: 1800 737 732.