Div 3Court orders

Division 3—Court orders 20—Application to Court for intervention order (1) The following persons may make an application to the Court for an intervention order: (a) a police officer; (b) a person against whom it is alleged the defendant may commit an act of abuse or a suitable representative of such a person given permission to apply by the Court; (c) a child who it is alleged may hear or witness, or otherwise be exposed to the effects of, an act of abuse committed by the defendant against a person; (d) if the defendant or a person proposed to be protected by the order is a child and there is a State child protection order in force in respect of the child—the Minister responsible for the administration of the Children and Young People (Safety) Act 2017. (2) If the person entitled to apply is a child, the application may be made— (a) by the child with the permission of the Court, if the child has attained the age of 14 years; or (b) on behalf of the child by— (i) a parent or guardian of the child; or (ii) a person with whom the child normally or regularly resides; or (iii) some other suitable representative of the child given permission to apply by the Court. (3) The applicant must inform the Court of any relevant Family Law Act order, State child protection order or agreement or order for the division of property under the Family Law Act 1975 of the Commonwealth, or the Domestic Partners Property Act 1996 or a corresponding law of another jurisdiction, any pending application for such an order, and any other legal proceedings between a person proposed to be protected by the order and the defendant, of which the applicant is aware (but an intervention order is not invalid merely because the applicant fails to so inform the Court). (4) A single application relating to the same defendant may be made by any number of persons. 21—Preliminary hearing and issue of interim intervention order (1) On an application for an intervention order in circumstances in which an interim intervention order has not been issued by a police officer, the Court must hold a preliminary hearing as soon as practicable and without summoning the defendant to appear. (2) If the application is made by telephone or other electronic means in accordance with rules of Court— (a) the preliminary hearing may occur by oral questioning of the applicant and any other available witness or by other means contemplated by the rules; and (b) if the Court is not satisfied that it is an appropriate case for completing the preliminary hearing without requiring the personal attendance of the applicant, the Court may adjourn the hearing to a time and place fixed by the Court and inform the applicant of the time and place so fixed. (3) At the preliminary hearing, the Court may— (a) issue an interim intervention order against a defendant if it appears to the Court that there are grounds for issuing the order; or (b) dismiss the application on the grounds that the application is frivolous, vexatious, without substance or has no reasonable prospect of success or on any other ground considered sufficient by the Court. (4) If the applicant alleges non‑domestic abuse and is a person other than a police officer, the Court must, in determining whether to exercise the discretion to dismiss the application, take into account— (a) whether it might be appropriate and practicable for the parties to attempt to resolve the matter through mediation or by some other means; and (b) whether the application is in the nature of a cross application; and (c) any other matters that the Court considers relevant. (4a) If the applicant is a police officer— (a) the Court is not bound by the rules of evidence but may inform itself as it thinks fit; and (b) the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. (5) There is a presumption against exercising the discretion to dismiss the application if the applicant alleges an offence involving personal violence or an offence of stalking and harassment under section 19AA of the Criminal Law Consolidation Act 1935. (6) The Court may issue an interim intervention order on the basis of evidence received in the form of an affidavit if the application is made by a police officer or a person introduced by a police officer but, in that case— (a) the deponent must, if the defendant so requires, appear personally at the proceedings for the determination of the application to give oral evidence of the matters referred to in the affidavit; and (b) if the deponent does not appear personally to give evidence as so required—the Court may not rely on the evidence contained in the affidavit for the purpose of determining the application. (7) An interim intervention order issued by the Court must— (a) identify the defendant and the persons protected by the order; and (b) specify the prohibitions and requirements imposed by the order; and (c) require the defendant to appear before the Court at a specified time and place (within 8 days after the date of the order or, if the Court will not be sitting at the place within that period, within 2 days after the Court next commences sitting at the place). (8) An interim intervention order issued by the Court comes into force against the defendant when served on the defendant in accordance with this section. (8a) For the purposes of subsection (8), an interim intervention order is served on the defendant if— (9) On an interim intervention order issued by the Court being served on the defendant, the defendant will be taken to have been issued a summons to appear before the Court as specified in the order for the purposes of proceedings to determine the application for a final intervention order under section 23. (10) The Principal Registrar must— (a) give a copy of an interim intervention order issued by the Court to— (i) notify the Commissioner of Police in writing of the prescribed details of the order; or (ii) give a copy of the order to the Commissioner of Police. (11) The Principal Registrar must notify the relevant public sector agencies in writing of the prescribed details of interim intervention orders issued by the Court. (12) A person against whom an interim intervention order is issued by the Court must notify the Principal Registrar in writing of an address for service. (13) If a hearing is adjourned under this section, the Court need not be constituted at the adjourned hearing of the same judicial officer as ordered the adjournment. 22—Adjournments (1) The Court may, from time to time without requiring the attendance of any party, adjourn the hearing of an application for an intervention order at which a defendant is required by an interim intervention order to appear to a later date if satisfied that the interim intervention order has not been served or that there is other adequate reason for the adjournment. (2) The date fixed for an adjourned hearing must be within 8 days after the date on which the adjournment is ordered, unless the Court is satisfied— (a) that a later date is required to enable the interim intervention order to be served; or (b) that there is other adequate reason for fixing a later date. (3) If a hearing is adjourned under this section, the Court need not be constituted at the adjourned hearing of the same judicial officer as ordered the adjournment. 23—Determination of application for intervention order (1) Subject to this section, on the hearing of an application for a final intervention order, the Court may— (a) confirm the interim intervention order issued against the defendant as a final intervention order; or (b) issue a final intervention order in substitution for an interim intervention order issued against the defendant; or (c) dismiss the application and revoke the interim intervention order issued against the defendant. (1a) If the Court determines that it is appropriate to confirm an interim intervention order as a final intervention order or to issue a final intervention order in substitution for an interim intervention order under subsection (1) and the defendant, or a person protected by the order, is a child or the parent of a child, the Court— (a) must make the following inquiries: (i) whether there is any relevant Family Law Act order or State child protection order; (ii) how the final 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— (A) the protected person or the defendant; and (B) any child of, or in the care of, either of those persons; and (b) must take such steps as the Court considers necessary so as to avoid inconsistency between the order and any Family Law Act order or State child protection order of which the Court has knowledge (whether on its own inquiry or having been so informed). (2) An interim intervention order issued against a defendant may be confirmed as a final intervention order, or a final intervention order may be issued in substitution for an interim intervention order issued against a defendant, in the absence of the defendant if the defendant failed to appear at the hearing of the application as required by the interim intervention order or by conditions of bail. (3) If a defendant disputes some or all of the grounds on which a final intervention order is sought but consents to the order, the Court may confirm the interim intervention order issued against the defendant as a final intervention order, or issue a final intervention order in substitution for the interim intervention order issued against the defendant, without receiving any further submissions or evidence as to the grounds. (4) If an interim intervention order is confirmed, the order continues in force against the defendant as a final intervention order without any further requirement for service. (5) A final intervention order that is issued in substitution for an interim intervention order comes into force against the defendant when served on the defendant in accordance with this section (and until the order is so served the interim intervention order continues in force against the defendant). (5a) For the purposes of subsection (5), a final intervention order is served on the defendant if— (6) If an interim intervention order is revoked, the Principal Registrar must serve written notice of the revocation on the defendant personally or by post at the address for service provided by the defendant under this Act or in some other manner authorised by the Court. (7) The Principal Registrar must— (a) give a copy of a final intervention order, or notice of revocation of an interim intervention order, to— (i) notify the Commissioner of Police in writing— (A) of the prescribed details of a final intervention order; or (B) that an interim intervention order (whether issued by a police officer or the Court) has been revoked; or (ii) give a copy of the final intervention order, or notice of revocation of an interim intervention order, to the Commissioner of Police. (8) The Principal Registrar must notify the relevant public sector agencies in writing of the prescribed details of final intervention orders issued by the Court and of the revocation of interim intervention orders by the Court. 24—Problem gambling order (1) If the Court confirms an interim intervention order as a final intervention order against a defendant or issues a final intervention order against a defendant in substitution for an interim intervention order, the Court may make an order (a problem gambling order) that the defendant is subject to a problem gambling family protection order under the Problem Gambling Family Protection Orders Act 2004 imposing specified requirements or orders of a kind that could be imposed by the Commissioner under that Act. (2) A problem gambling order must be served on the defendant in accordance with this section and is not binding on the defendant until so served. (2a) For the purposes of subsection (2), a problem gambling order is served on the defendant if— (3) If the problem gambling family protection order to which the defendant is subject includes an attachment order (within the meaning of the Problem Gambling Family Protection Orders Act 2004), the attachment order must be served on the third person specified in the order personally or in some other manner authorised by the Court and is not binding on the third person until so served. (4) A problem gambling order continues in force (subject to any variation of the order under this Act) until it is revoked. (5) If the Court orders that the defendant is subject to a problem gambling family protection order, the Principal Registrar must— (a) give a copy of the order to— (i) each person for whose benefit the order is made; and (ii) if the applicant for the order is not a police officer or a person protected by the order—the applicant; and (i) notify a person listed below in writing of the prescribed details of the order: (A) the Commissioner; (B) the Commissioner of Police; (C) the proprietor or licensee of any premises specified in the order; or (ii) give a copy of the order to a person referred to in subparagraph (i). 25—Tenancy order (1) If— (a) the Court confirms an interim intervention order as a final intervention order against a defendant or issues a final intervention order against a defendant in substitution for an interim intervention order; and (b) the final intervention order prohibits the defendant from being on premises at which a protected person resides; and (c) the defendant and protected person previously resided together on the premises; and (d) the premises are subject to a tenancy agreement to which the defendant is a party, the Court may make an order (a tenancy order) that the defendant will be taken to have assigned the defendant's interest in the tenancy agreement to a specified person or persons with the landlord's consent. (2) However, a tenancy order may only be made if the Court is satisfied that the assignee consents to the assignment and— (a) in a case where— (i) the landlord is a community housing provider registered under the Community Housing Providers National Law; and (ii) the premises constitute community housing within the meaning of that Law, the assignee meets the eligibility requirements for such community housing and any membership or other requirements of the landlord associated with occupation of those premises; and (b) in a case where the landlord is the South Australian Housing Trust or a subsidiary of the South Australian Housing Trust—the assignee meets the eligibility requirements of the Trust; and (c) in any case—the assignee could reasonably be expected to comply with the obligations under the tenancy agreement, (so that it would be unreasonable for the landlord to withhold consent to the assignment). (3) A tenancy order takes effect on the day on which it is made or on such later day as is specified in the order. (4) If a tenancy order is made— (a) the effect of the assignment is that the assignee is substituted for the assignor as tenant under the tenancy agreement (but the assignor remains responsible for liabilities that accrued before the date of the assignment); and (b) the assignee is liable to indemnify the assignor for liabilities incurred by the assignor to the landlord because of a breach of the tenancy agreement by the assignee; and (c) an amount paid by the assignor and held by way of security for the performance of obligations under the tenancy agreement will (unless the parties agree to the contrary) continue to be held as security for the proper performance by the assignee of obligations under the tenancy agreement. (5) The Registrar must give a copy of a tenancy order to— (a) the protected person; and (b) the defendant; and (c) the landlord; and (d) if the assignee is not the protected person—the assignee; and (e) the Registrar of the South Australian Civil and Administrative Tribunal.