From time to time clients of ours find themselves in the position where they need to seek an intervention order (known in some states as an Apprehended Violence Order or ‘AVO’), usually in cases where they have been threatened by another party.
People may assume that intervention orders are isolated to family disputes where violence has been used or threatened. In practice, they can also arise alongside commercial disputes. For example, between partners in a business, co-workers and between tenants and landlords.
Where the offending party is a family member, which can include relationships where the parties may not strictly be family but have a family-like relationship, the application can be made under the Family Violence Protection Act 2008. Otherwise the application can be made under the Personal Safety Intervention Orders Act 2010. This article focuses on applications under the latter.
Prohibited behaviour
A party may seek an intervention order where another party has subjected them to prohibited behaviour. This includes:
- Assault
- Sexual assault
- Harassment
- Property damage or interference
- Making a serious threat.
Commencing the application
Any application for an intervention order can be made at the Magistrates’ Court, either in person, or where appropriate by:
- Police officer on behalf of the affected part
- Guardian
- Party authorised by the affected person.
Typically, the Court will make an interim order before final determination. An interim has the same effect as a final order but only operates until the matter is determined. If the matter is dismissed, the interim order will lapse.
Examples of the types of orders that can be made as part of an interim or final order include:
- The respondent cannot go within a certain distance of the affected party
- The respondent cannot contact the affected party, either personally or through other parties (with certain exceptions such as police and lawyers)
- The respondent cannot go within a certain distance of the affected party’s home or place of work.
Varying or revoking the order
Either the affected party or the respondent can apply for the interim order to be varied or revoked at a later stage, however, the Court must first consider whether there has been a change in the need to protect the affected party. It is unlikely that the interim order will be revoked unless there is some significant change in circumstances.
An example is where evidence emerges that the affected party made the application for an improper purpose (such as obtaining an advantage in another dispute).
Resolution prior to final hearing
Subsequently, the matter will be listed for an administrative hearing. At that hearing, the respondent may choose to:
- Contest the making of a final order, so as to avoid the need to attend Court for a final hearing
- Consent to a final order but without admitting the alleged conduct
- Give an undertaking.
An undertaking is not an order. It is an undertaking not to do the things described in the undertaking (which will most likely be the same as if an order had been made) but, rather than being a criminal offence if breached, it simply means that the affected party may seek to bring the matter back to Court. Where an undertaking is breached it is more likely a final order will then be made.
Where the matters alleged against the respondent are not violent, the Court may list the matter for a mediation between the parties.
Final Hearing
As soon as the Court can accommodate it the matter will be listed for final hearing. However, it is common for the final hearing to be delayed, where there are also criminal charges against the respondent.
Typically parties will give evidence in person or by affidavits though the Court has some discretion as to how it accepts evidence.
A final order can be made if the Court is satisfied on the balance of probabilities that the respondent has committed the prohibited conduct, is likely to continue to do so (or will do so again) and the respondent’s behaviour would cause a reasonable person to fear for their safety, or where they have stalked the affected person and are likely to do so again. While the Court will usually try to deal with the matter quickly, it can often take a day or longer if there are several witnesses and the matter is contested.
Each party will usually bear its own legal costs of the proceeding, but costs can be awarded in exceptional circumstances or where the application was made vexatiously, frivolously or in bad faith.
Summary
Where a party has been subjected to threatening or violent behaviour, an intervention order can assist in preventing the behaviour from continuing. The protection afforded by an intervention order is significant. For this reason, the Court takes a dim view of applications brought in bad faith.
Our solicitors have seen instances where an intervention order has apparently been sought to gain an advantage in a wills dispute and as retaliation for another intervention order being applied for. In these circumstances, there is a real prospect a costs award can be made against the party bringing the application.
This article originally appeared in the autumn 2016 edition of InDispute. Other articles in this newsletter included:
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