Who is in control of intervention order proceedings in domestic violence cases? A case study from South Australia

Abstract

This article examines the legal complexities and barriers experienced by victim-survivors looking to use intervention orders or apprehended violence orders as tools to protect themselves from domestic violence. Drawing on research from South Australia, it highlights the significant role police play when issuing these orders and the subsequent loss of control experienced by some applicants. Using the recent South Australian decision in MT v SE, the article explores the relationship between the intervention orders system and claims of malicious prosecution, and warns of the chilling effect of this decision for those already hesitant to report domestic violence to police.

Intervention orders, or apprehended violence orders as they are known in some Australian jurisdictions, are civil orders issued by the police or the courts to prohibit or prevent a person from contacting, abusing, harming or threatening another person. ¹

In South Australia (SA), interim intervention orders can be issued by the South Australia Police (SAPOL) and then later confirmed by the SA Magistrates Court. ² In some cases, for example when a person makes an application themself or through their lawyer, the Court can also issue an interim intervention order prior to holding a hearing to confirm the order. If a person breaches an intervention order, they can be liable for criminal penalties. ³

Intervention orders are designed to be preventative in nature, physically separating partners or family members and prohibiting various forms of interaction with a view to avoiding or deterring abuse or violence from occurring. ⁴ However, domestic and family violence remains a persistent, costly social problem across SA, ⁵ despite the efforts of police, government officials and a wide range of community service providers to develop strategies to respond to this form of harm. ⁶ Those with lived experience of the intervention order system have told local researchers, ⁷ national inquiries ⁸ and Royal Commissions ⁹ about the structural problems and cultural deficits evident within both the legal framework governing intervention orders and the practical implementation of these legal tools. ¹⁰

One of these challenges is the way SA intervention orders interact with other preventative orders made by the Federal Circuit Court under the Family Law Act 1975 (Cth), ¹¹ and the potential for both federal and state systems to be weaponised by perpetrators. ¹² Local and national studies – and a Royal Commission into Domestic, Family and Sexual Violence currently underway in SA ¹³ – have also highlighted the significant role that police play in intervention order systems, both as essential conduits for access to interim orders and through the exercise of discretion when it comes to investigating and prosecuting breaches of intervention orders. ¹⁴

A recent SA Supreme Court of Appeal decision, MT v SE, ¹⁵ reflects each of these challenges and contests the positioning of police as powerful ‘gatekeepers’ within the intervention order system. By leaving open the possibility that an intervention order applicant could be liable for malicious prosecution, the Court of Appeal’s decision in MT v SE has potentially significant implications for those who may already have good reason to be sceptical of the SA intervention order system’s capacity to prevent and deter domestic violence.

As outlined below, the fact that police officers are empowered to apply for interim intervention orders has the potential to remove the burden that would otherwise fall on the victim-survivor to attend court and confront the alleged perpetrator. For this reason, police-initiated intervention orders are common in Australian jurisdictions, ¹⁶ with many victim-survivors benefiting from these police-led processes that are not available in other countries, including the United States. ¹⁷ However, as shown in the case study explored in this article, the transfer of control from the victim-survivor to the police officer can be problematic, particularly when there is a risk of perpetrators using protracted legal proceedings as a form of abuse or coercive control. The predominance of the use of police-initiated intervention orders across Australia, and the growing trend towards similar approaches in the United Kingdom, ¹⁸ makes this SA case study of broader relevance and demands that we confront the practical and legal question of ‘who is in control of intervention order proceedings in domestic violence cases?’.

Who makes intervention orders in South Australia?

Under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Intervention Orders Act), orders can be issued by the SA police (described as ‘interim Intervention Orders’) or by the Magistrates Court following an application by the police or through a private application. ¹⁹ Section 6 provides that an intervention order can be issued against a defendant if:

(a) it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and

(b) the issuing of the order is appropriate in the circumstances.

The term ‘abuse’ is broadly defined and includes ‘physical, sexual, emotional, psychological or economic abuse’ ²⁰ and an ‘unreasonable and non-consensual denial of financial, social or personal autonomy’, as well as damage to property. ²¹

These s 6 grounds need to be established on the balance of probabilities: it must be ‘more likely than not’ that the defendant will commit an act of abuse. ²² To meet this threshold, the applicant will generally have to provide an affidavit outlining the background of their relationship with the defendant, the details of the defendant’s recent behaviour or any relevant past incidents, and any existing or pending court orders, including Family Court orders. ²³ The process of collecting and articulating this information can be complex and challenging for victim-survivors, and has been identified as one of the factors contributing to persistently low reporting rates. ²⁴

If an interim intervention order is issued by a police officer, it needs to be served on the defendant and the defendant will then be required the defendant to appear before the Magistrates Court. ²⁵ If the Magistrates Court receives an application for an interim intervention order through a private application a hearing will be held as soon as possible to determine whether there is enough evidence to issue an interim intervention order. ²⁶ The application can also be dismissed, for example, if it is found to be vexatious or without substance. ²⁷

An intervention order will set out a list of things that the defendant cannot do or must do, ²⁸ for example, prohibiting the defendant from being at the place at which a protected person resides or works or from approaching or contacting a protected person. ²⁹ If the defendant acts in breach of these terms, they can be liable for a criminal offence. ³⁰

An interim intervention order will become final through a process set out in s 23 of the Intervention Orders Act, which can involve holding a hearing to obtain evidence from the applicant and any other protected persons. ³¹ Unlike other Australian jurisdictions, final intervention orders in SA have no end date: they continue to operate until they are varied or revoked by the Court.

Central role of police in the intervention order system in SA

When domestic or family violence occurs, there may be a range of factors that operate to dissuade or prevent a victim-survivor from contacting the police. ³² In many cases, the victim-survivor of domestic or family violence will seek the assistance of someone other than the police – such as a friend, family member, social worker or other service provider – for advice and support. ³³ Often, this support person will encourage the victim-survivor to report the matter to the police, by phone or in person. As many studies and inquiries have found, ³⁴ the nature of the initial interaction between the victim-survivor and the police officer can have a decisive impact on the subsequent decisions and actions taken by the victim-survivor, including decisions relating to applying for or enforcing intervention orders. ³⁵

If a victim-survivor of domestic or family violence does contact the police, the police have the power to issue an interim intervention order against the defendant ‘on the spot’, for example, when called out to an incident if the need for the order is urgent, and the interim can be immediately served on the defendant. ³⁶ An interim intervention order can be issued in addition to the bringing of other charges against the defendant, for example in circumstances where violence or threats of violence have already occurred.

For many people experiencing domestic or family violence, police-led issuing of interim intervention orders is a critical safety response, ³⁷ and a key feature of Australia’s legislative response to addressing this form of violence. The assistance police can provide applicants in the process of gathering and presenting evidence to support the application for an interim intervention order is also significant, and some research shows that police-led intervention order applications are more likely to be finalised than private applications. ³⁸ In this context, it is not surprising that most intervention orders issued in Australia are issued by police. For example, in the 2023–24 period the SA Magistrates Court recorded a total of 4966 ‘intervention order lodgements’. ³⁹ This included 3481 domestic violence-related intervention orders that were issued by police, compared with 320 non-police applications for domestic violence related intervention orders during the same period. ⁴⁰

However, applicants’ experiences of police-issued intervention orders are not always positive. In a 2022 study of the SA intervention order system involving 63 anonymous survey responses, 20 individual interviews and four focus groups, ⁴¹ many participants shared the observation that police-issued intervention orders can lead to feelings of a lack of control for the victim-survivor and can demand a higher threshold of evidence of abuse or violence. ⁴² Research participants also noted that intervention orders obtained without police assistance can facilitate more victim-survivor control over the process and a more positive experience if high quality, specialist legal advice can be accessed. ⁴³ As one witness appearing before the SA Royal Commission into Domestic, Family and Sexual Violence explained:

[W]omen have been through so much already and feel let down a lot of times by systems already and the systemic abuse that’s already occurred. They don’t feel in control or have power over their situation, and it's almost setting them up to fail again. It’s almost setting them up again for that systems abuse and particularly when we hear, ‘No one believes my story.’ So it’s a very delicate line to sort of tread to empower a woman and help her to gain control back of her life and have those safety measures but also not setting them up for an unrealistic expectation that may not occur. ⁴⁴

Experiences of feeling a ‘lack of control’ over the issue of legal proceedings was described by some research participants as being exacerbated where proceedings relating to intervention orders intersect or overlap with Family Court proceedings. ⁴⁵ This aligns with past studies and inquiries that explore the potential for legal systems designed to address or prevent domestic and family violence to exacerbate power differentials and sometimes lead to perpetrators weapons legal proceedings against victim-survivors as a form of coercion and control. ⁴⁶ For example, in February 2025 the House of Representatives Standing Committee on Social Policy and Legal Affairs observed that the intersection of family law proceedings and intervention order systems can give rise to opportunities for perpetrators of domestic and family violence to exercise coercive control over victim-survivors, for example by using state-based intervention order systems to restrict parental access to children. ⁴⁷ The Committee found that, ‘[t]his dual system can be time consuming, confusing, costly and re-traumatising for victim-survivors, and can put them at risk and anchor them to their abusers.’ ⁴⁸

Who is in control of intervention order proceedings? The decision in MT v SE

The decision in MT v SE ⁴⁹ highlights many of the challenges identified above with respect to the complex intersection between Family Court proceedings and intervention orders issued by State courts. The decision also explores the question of who is in control of interim intervention orders issued by police under the Intervention Orders Act in SA, and whether the truthfulness of statements that applicants make to police when reporting domestic violence or abuse can be challenged in subsequent proceedings through claims of malicious prosecution.

The case of MT v SE involved a dispute between former spouses over allegations of abuse. ⁵⁰ Following engagement with relationship support and domestic violence services, the respondent made a report to the police alleging experiences of physical, emotional and sexual abuse perpetrated against her by the appellant. This resulted in an interim intervention order being issued by police to protect the respondent and her son. A trial was listed to determine whether a final intervention order should be made in the SA Magistrates Court. However, the trial did not proceed because the presiding magistrate took the view that any necessary protective arrangements could be made by the Federal Circuit Court in connection with pending Family Law Act parenting proceedings. The interim intervention order was then revoked. The appellant denied any abuse, physical or otherwise, directed towards the respondent or their son. ⁵¹ In the related Family Law Act proceedings between the parties, the Federal Circuit Court issued interim orders for a mutual injunction, restraining both parties’ behaviour with respect to each other and their son. These orders were later finalised by consent.

Five years later, the appellant filed a statement of claim in the SA District Court alleging malicious prosecution and collateral abuse of process and seeking damages from the respondent. The appellant argued that he lost the opportunity to take up paid employment as a result of the intervention order proceedings. The respondent applied for a summary judgment against the appellant, seeking a determination from the District Court that there was ‘no reasonable basis’ for the appellant’s claims. ⁵²

The summary judgment procedure is a process where the court can make a decision about a case without a full trial, if one party demonstrates that the other party has no real prospect of succeeding in their alleged claim or arguments. ⁵³ The power to determine a claim summarily should not be exercised lightly, and ‘requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success’. ⁵⁴ Care must be taken

not to do injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. ⁵⁵

To incur liability for malicious prosecution, the person bringing the proceedings must play an ‘active role in the conduct of the proceedings, as by instigating or setting the proceedings in motion’. ⁵⁶ The elements of this tort have been articulated in a number of cases, including by the High Court in Beckett v New South Wales ⁵⁷ and A v New South Wales ⁵⁸ and include the requirement that the plaintiff prove that the prosecution was (a) initiated by the defendant, (b) ended in a way that was favourable to the plaintiff, (c) that the defendant acted with malice in bringing or maintaining the prosecution, which was (d) brought or maintained without reasonable and probable cause. ⁵⁹ The related tort of ‘abuse of process’ requires proceedings to be ‘seriously or unfairly burdensome, prejudicial or damaging, or productive of serious and unjustified trouble and harassment’. ⁶⁰

In the case of MT v SE, both of these causes of action required that the respondent had ‘instituted or initiated the intervention order proceedings’. ⁶¹ District Court Judge Deuter found that this fundamental element was missing because ‘the respondent was not the initiator, and that the intervention order proceedings had been prosecuted or instigated by SAPOL’. ⁶² Judge Deuter also found that the respondent had not instigated the proceedings for an improper purpose, and that there was ‘no evidence that the respondent had misused the legal process by reporting her complaint to SAPOL and seeking an intervention order’. ⁶³

In making this finding, Deuter J emphasised the importance of protecting victim-survivors of abuse from further harm through the legal system, while also ensuring the integrity of intervention order proceedings. ⁶⁴ Judge Deuter noted that the intervention order proceedings were initiated by the police, not the respondent, and that the respondent’s role was limited to providing a statement to the police. ⁶⁵

The appellant appealed the decision to the SA Supreme Court of Appeal, arguing that the Deuter J erred in fact and law by concluding that there was no reasonable basis for contending that the respondent had initiated the intervention order proceedings, and that there was no reasonable basis for contending that the respondent had initiated the proceedings for an improper purpose. ⁶⁶

When considering the appellant’s arguments with respect to malicious prosecution, Justices Livesey P, Bleby JA and Hall AJA relied upon the High Court’s decision in A v New South Wales ⁶⁷ and the UK House of Lord’s decision in Martin v Watson ⁶⁸ and found that there can be cases where a complainant, rather than the police officer, will be regarded as the prosecutor. ⁶⁹ These cases made it clear that there can be ‘circumstances where the capacity of a police officer to verify information and form an opinion about where the truth appears to lie, in a practical sense, is very limited’ ⁷⁰ that can give rise to the complainant, rather than the police officer, being properly identified as the ‘prosecutor’. ⁷¹ Their Honours further found that, even when the police are actively involved in receiving complaints, they will not be considered to be ‘instigating proceedings’ unless they are in a position to ‘exercise independent discretion in deciding whether to bring proceedings’. ⁷² In accordance with this line of authority, the police will be considered unable to exercise independent discretion if (a) the information provided to them by the complainant is ‘solely within the complainant’s knowledge’ and/or (b) where the complainant actively misleads the police by providing false information. ⁷³ The Court of Appeal explained that, in this case:

[t]o say, as the primary judge did, that SAPOL was in control of the proceedings at all times, and that the respondent’s only role was to provide a statement to the police, was, with respect, an inaccurate summary and did not engage with the essential issues. The respondent’s stated objective in doing so was to obtain an intervention order. The police discontinued the application only after consulting with the respondent. In the circumstances, the available evidence indicated that the police did not exercise independent discretion. There was, at least, a reasonable basis for advancing a claim that the respondent was the instigator of the proceedings.

It is also relevant to take into account that the appellant denied the allegations of abuse and claimed that they were entirely false and made for the improper purpose of frustrating any attempt by him to obtain more favourable access to the child. Whether or not the allegations were true is not a matter that can be determined at the summary judgment stage. But the determination of the summary judgment application should have proceeded on the basis that the appellant’s denials and claims could be true. ⁷⁴

The Court of Appeal allowed the appeal in part, setting aside the District Court’s summary judgment in respect of the malicious prosecution claim, and permitting the matter to proceed to trial.

Potential chilling effect of risk of liability for malicious prosecution

The decision in MT v SE highlights the potential paradox that can arise in the context of interim intervention orders issued by police in SA. On the one hand, police-issued intervention orders are very common within the SA system and many victim-survivors report a sense of loss of control following the issue of interim orders by police, including with respect to the terms of the order and the decisions that may precede the withdrawal or finalisation of an interim order by the Magistrates Court. On the other hand, the outcome in MT v SE exposes the potential for police-issued interim intervention orders to be perceived as being within the control of the victim-survivor applicant, who may therefore be liable for potential claims of malicious prosecution or abuse of process, including by the alleged perpetrator of the domestic violence or abuse, if the factual accuracy of their statements or evidence produced in support of the intervention order application is contested.

There are important reasons why intervention order applicants should be deterred from engaging in malicious prosecutions or abuse of process, and the weaponising of legal systems has been recognised by many scholars and studies as a form of coercive control. ⁷⁵ However, when considered in the context of an applicant who has been encouraged by domestic and family violence support services to report violence to the police, the precedent set by MT v SE is problematic. Many victim-survivors are already hesitant to report domestic violence or seek intervention orders from police, fearing that their accounts of violence or abuse will not be believed by police. ⁷⁶ Now, a victim-survivor may also have good reason to fear legal repercussions if their abuser claims malicious prosecution. This chilling effect could result in fewer reports of domestic violence, leaving many without the protection they desperately need. It brings to mind these sobering reflections from research participants in the 2022 study:

The system that is being built to protect women from this type of abuse can be turned into a weapon in the hands of those men that are seeking to perpetuate control against their partner or their family.

Fighting and dealing with failing systems is exhausting let alone when you are traumatised and dealing with children after fleeing [domestic violence]. ⁷⁷

This ‘chilling effect’ was also foreshadowed by her Honour Judge Deuter in MT v SE, who noted that:

It is important that victims of abuse, and those who live in fear, are not further abused by a legal system allowing those against whom abuse is alleged, to seek personal liability from them. This would be contrary to the objects of the IO Act, and could stop victims applying for Intervention Orders. Such an outcome would nullify the principles for intervention against abuse, as set out in section 10. ⁷⁸

However, this perspective was contested by the Court of Appeal in its judgment where it was observed that:

Ultimately, whilst any discretion exercised by the police needs to be understood in the context of the IO Act, the question to be answered remains the same: did the respondent play an active role in the proceedings by instigating them or setting them in motion? If the answer to that question is ‘yes’, the fact that the proceedings are brought under the IO Act would not prevent them from being the subject of an action for malicious prosecution or (arguably) collateral abuse of process. In any event, the concern expressed by the primary judge that the risk of being sued would deter genuine applicants is contestable. ⁷⁹

The Court of Appeal went on to explain:

It is instructive in this regard to note that there have been a number of cases in New South Wales where it has been held, or at least assumed, that an application for an order analogous to an intervention order may found a claim for malicious prosecution. This is so notwithstanding that such applications are not criminal in nature (thought usually brought in the criminal jurisdiction of the Magistrates Court). The purpose of restraining order proceedings has not been viewed as an impediment to an action for malicious prosecution, or collateral abuse of process. It is at least arguable that these causes of action extend to IO proceedings. It would be inappropriate to use summary judgment to terminate proceedings on the basis of a legal question where that question is arguable and the law may be open to development. ⁸⁰

One of the NSW cases referred to by the SA Court of Appeal, ⁸¹ Rock v Henderson, involved proceedings between domestic partners where it was alleged that the female partner had made false statements to the police about the fear she experienced as a result of alleged behaviour by her male partner, in circumstances where complex and protracted Family Court proceedings were underway. ⁸² The other cases – HD v New South Wales, Marino v Bello (No 3), Clavel v Savage, Li v Deng (No 2) – involved apprehended violence order proceedings between family members who were not domestic partners. In these cases, the NSW courts did not explicitly refer to the policy objectives underpinning the NSW apprehended violence order regime as an impediment to an action for malicious prosecution: the legal issues were resolved on other grounds. However, the absence of this discussion does not of itself remove the potential for these decisions, and those like MT v SE, from deterring victim-survivors from reporting abuse to police, contrary to the objects of intervention order or apprehended violence order regimes. This body of case law could signal to those experiencing domestic violence or abuse that attempts to utilise legal tools like interim intervention orders bring with them risks of protracted legal proceedings at the state and federal level, even when police officers may appear to be ‘in control’ of the application process. ⁸³

Some may see the decision in MT v SE as an example of the Court of Appeal upholding the ‘high threshold’ required to be satisfied by the Court before issuing summary judgment in matters involving potentially contested factual accounts. ⁸⁴ Others may also consider the decision to be an important safeguard to deter applications for intervention orders being made by perpetrators against victim survivors, in cases where the person most in need of protection is subverted through the misuse of these legal processes. ⁸⁵

However, for those with lived experience of domestic and family violence it may be yet another reason not to trust the intervention order system as an effective form of protection or prevention. The decision has the potential to amplify negative messages about the ‘believability’ or motivations of those alleging domestic and family violence and can add to perceptions that seeking protection through the intervention orders system can be emotionally and financially costly for victim-survivors. ⁸⁶ As one SA research participant said:

As a community we need to think about how we design a system that puts the victim at the heart of it and provides her with wrap around support. In the current system, it is difficult to even encourage women to apply for an Intervention Order, particularly those with multiple experiences of violence. They just think what is the point? ⁸⁷

While the parties in MT v SE continue to await the outcome of future legal proceedings, the SA Royal Commission into Domestic, Family and Sexual Violence has completed its public hearing process and is due to report on its findings in the middle of 2025. ⁸⁸ This case, and the findings of the Royal Commission, have the potential to resonate around Australia and further afield to jurisdictions such as England and Wales, where police-led protection orders feature prominently in efforts to address the persistent and widely felt impacts of domestic and family violence. ⁸⁹