South Australian Numbered Acts

INTERVENTION ORDERS (PREVENTION OF ABUSE) ACT 2009 (NO 85 OF 2009) - SECT 21

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.

        (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 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 personally or in some other manner authorised by the Court.

        (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 the hearing and determination of the application.

        (10)         The Principal Registrar must give a copy of an interim intervention order issued by the Court to—

            (a)         the Commissioner of Police; and

            (b)         each person protected by the order; and

            (c)         if the applicant is not a police officer or a person protected by the order—the applicant.

        (11)         The Principal Registrar must notify the relevant public sector agencies of the 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.