INTERVENTION ORDERS: WHEN CAN THEY BE MADE?
February 2, 2017
The man was having an affair with a woman who was married with two children. On a number of occasions, he had questioned her about whether she was still involved with her husband, but she denied that she was and reassured him that her marriage was over.
The pair had agreed that he would only visit her home during the day when her children were at school. But in October 2015, he went to her home at another time to speak to her. He went to the front door but couldn’t get her attention. He went to the back yard to see if she was there. The woman and her husband were in the house at the time and called the police.
When the police arrived, the man left without causing any incident. The police later went to his home and searched his car. They found capsicum spray, a small knife and a hammer. He hadn’t taken them onto the woman’s property and said they had been in his car for a long time.
Even so, the man was arrested and placed in custody for 7 days. He was then released on bail and charged with being on premises without lawful excuse and for being in possession of a dangerous article and an offensive weapon.
The police issued a temporary (interim) intervention order against him to stop him from going near the woman or her family.
When the matter was heard by a Magistrate, the man entered a guilty plea. He was convicted of all charges and placed on a good behaviour bond. The Magistrate made a final intervention order against him that required no contact or communication with the woman or her family, not to approach them, to stay at least 250 metres away from them at all times and not follow or stalk them.
The man appealed this decision.
What is an intervention order?
Intervention orders were formerly known as restraining orders. They can be made when there is a fear or suspicion that a person may commit an act of abuse against another person.
An intervention order is usually an interim order until there is a hearing to work out whether a final order should be made. In this case, the police made the interim order. When an intervention order becomes final, it has a significant impact. A final order lasts indefinitely unless a person can successfully apply to have the order revoked. This can only be done after 12 months and only if the person can prove that there has been a permanent and significant change in their behaviour and if they have not breached the interim order in any way.
This can be extremely difficult.
Even worse, final intervention orders can seriously impact other areas of a person’s life. For example, the person may struggle to have any parenting orders made in their favour for family law disputes. It may affect overseas travel or their ability to secure a loan. It may even affect the work that they do.
The Court’s decision
The man realised how serious the situation was and appealed the Magistrate’s decision. He said there was no reason for the order to be made and that there was no reasonable suspicion that he would commit an act of abuse against the woman or her family.
The Court looked at the laws that allow for intervention orders to be made. The laws said that the Magistrate was required to:
- Decide whether there were reasonable grounds to suspect that the man would commit an act of abuse against the woman or her family, AND
- Decide whether it was appropriate to issue the order.
The Court said that it couldn’t tell whether the Magistrate had considered both of these things and so it couldn’t conclude that the intervention orders had been properly made.
It also said that because the Magistrate had suggested that the final intervention order be made, neither the man nor the prosecution had enough notice to properly prepare their arguments for and against the order. This particularly impacted the man because he had no legal representation.
He wasn’t given a full opportunity to oppose the order and when the final order was made, it was to have a significant negative impact on his life. The Court decided to quash (or cancel) the order.
What does it mean?
This case reinforces how serious it is to have a final intervention order against you. A defendant must be given proper notice that a final order might be made and proper opportunity to prepare an argument against the order being made final. A Court must also treat the matter seriously and make sure that it has made all proper considerations before making the final order.
The case also highlights that the defendant has the right to call evidence from the protected person which has often been a controversial aspect of intervention order hearings.
If you have an interim intervention order made against you or are concerned that an order may be about to be made, you should seek legal advice immediately. It’s your best chance to try and stop a final order being made. More information can be found here.