Recent amendments to domestic violence law have commenced in South Australia. They are contained within the Statutes Amendment (Domestic Violence) Act 2018.
Variation of interim orders
The new s 26A of the Intervention Orders (Prevention of Abuse) Act 2009 enables an applicant to apply to the court to vary an interim order issued by police.
Where such an application is made the court must hold a preliminary hearing as soon as practicable and without summoning the respondent to appear. An application can be made by telephone or other electronic means, and the preliminary hearing may occur by oral questioning of the applicant and any other available witness, or by other means contemplated by the rules including affidavit evidence. If the court thinks it appropriate, it may adjourn the hearing so the applicant can attend for questioning.
At the preliminary hearing, the court may:
- issue an interim variation of the intervention order if it appears to the court that there are grounds for issuing the variation; or
- determine that the application should be dealt with under s 26 without the issuing of any interim variation order; or
- dismiss the application on any ground considered sufficient by the court.
Any interim variation issued by the court must require the defendant to appear before the court within eight days.
An interim variation of an intervention order issued by the court comes into force against the defendant when:
- the order is served on the defendant personally; or
- the order is served on the defendant in some other manner authorised by the court;
- the defendant is present in the court when the order is made.
Admissibility of recorded evidence
Pursuant to the new s 13BB of the Evidence Act 1929 and the new s 28A of the Intervention Orders (Prevention of Abuse) Act 2009, the applicant, or someone else for whose protection an intervention order is sought, may give evidence via a recording. Section 28A applies in addition to, and does not derogate from, any other power of the court to receive evidence or to determine the form in which evidence may be received, including evidence in the form of a recording.
Domestic violence strangulation offence
The new s 20A of the Criminal Law Consolidation Act 1935 introduces a specific domestic violence strangulation offence—namely, choking, suffocating or strangling a person without consent with whom the offender is, or was, in a relationship. The maximum penalty for the offence is seven years imprisonment.
Amendment to publications
These amendments to domestic violence law have been incorporated into the commentary in the By Lawyers Intervention Orders guide for South Australia.