Blog post by Rachael Grauwelman-Smith
In South Australia, intervention orders (‘IOs’), previously called restraining orders, are Court orders made to stop someone (the defendant) from physically or otherwise harming the protected person or a number of protected persons. A protected person can be a child who hears, sees, or is otherwise exposed to an act of abuse against another person protected by an IO, such as the child’s parent.
An IO can also tell the defendant to follow certain directions from the Court. The defendant does not have to be living near the protected person – an order can be made for a defendant living anywhere in Australia. An IO is an order under civil law, which means it is not a criminal charge against the defendant. However, criminal penalties may apply if the defendant breaches the IO. There is no time limit on how long an IO will last for – they are ongoing until a Court revokes it.
An IO can be made to help you if you think it is likely that someone will commit an act of abuse against you, and it is appropriate in all the circumstances (see Intervention Orders (Prevention of Abuse) Act 2009 (SA)). An act of abuse includes more than physical injury; it can also include:
– emotional or psychological harm;
– damage to property; and
– ‘indirect abuse’, such as:
- where a defendant threatens to hurt someone close to you and this makes you distressed; and/or
- where a person causes someone else to abuse you.
Intervention orders can be made for domestic abuse cases or non-domestic abuse cases. Domestic abuse cases include abuse against a person who is in a relationship with the defendant, or who used to be in a relationship with the defendant. Where the abuse occurs in a domestic situation, proceedings in the Magistrates Court are usually quicker, with less or no adjournments.
INTERIM INTERVENTION ORDER
If you urgently need protection, call the police. They are able to issue an interim IO if the defendant is present or in custody. You will then be protected as soon as the defendant is notified. This means you are protected immediately without having to go to court first.
If you do not need immediate protection, or if the police do not grant you an interim IO, you can apply to the Magistrates Court for an IO. At the preliminary hearing (the first hearing) a magistrate will examine your application and if she or he decides there is enough evidence, an interim IO will be made. For this to happen, the Court must be sure it is reasonable to suspect that the defendant will commit an act of abuse.
ONGOING INTERVENTION ORDER
Once made, the interim IO will require the defendant to appear in the Magistrates Court, usually within 8 days, for the Court to decide if the order should be confirmed (made into an ongoing IO), or revoked, which means the IO stops and you are no longer a protected person under the IO.
BREACH OF INTERVENTION ORDER
If a defendant breaches a term of the IO, he or she is guilty of a criminal offence and could receive a penalty of up to two years in prison. Under the new domestic violence law, if you are protected by an IO and you contravene it, you are not guilty of an offence if your behaviour does not involve another person protected by the IO, such as a child.
If a police officer has reason to suspect a person has breached a term of an IO, the officer may arrest and detain that person.
If you have an IO, you should always report any breach to the police and ask that the police give you the report number. Reporting all breaches of an IO can make it easier for charges to be laid against the defendant.
The Courts Administration Authority of South Australia have published a video for people who want to know more about getting an intervention order.
For more information on intervention orders contact Culshaw Miller Criminal Lawyers.