VIC What to Do with Interim Intervention Order?

Rod said:

It can be better, but I can't see any radical changes to it when people are dying through domestic violence and there is a great deal of public pressure to reduce deaths and serious injuries.

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No, you're right. The public pressure to do something about this is very strong right now. I just wish they didn't try to have a 'one size fits all' approach to these things. An applicant should have to do more to justify their request for the order and a magistrate should do more to question it at the first instance. If there really is a clear and immediate danger, it surely should be possible to demonstrate it and it should be explained on the intervention order. Lumping all accusations of domestic violence in together, as if some arguments and some yelling in front of the kids (in which both parties are often equally to blame for anyway) is the same as beating your partner up because they didn't cook your favourite dinner or they wouldn't tell you where they were the other day or whatever, is just wrong.

My ex did not demonstrate sufficient justification IMO, nor did she have to provide any evidence from what I can tell. And IMO even what she did twist and lie on her application, it still did not demonstrate an imminent threat to my children. A mere claim to be fearful of what might happen should not be enough. Plenty of people are fearful without justification, especially with emotions running wild after a messy separation.

I mean, a police officer cannot arrest someone without a damn good evidence and reason, and yet they are on the front line of serious injury and death on a daily basis. If they are required to demonstrate solid evidence before arresting someone, surely a magistrate should expect the same before approving an intervention order that restricts access to someone's children and removes them from their own home (not to mention all their property still stuck at the house).

Rod said:

My favourite solution is to punish people who are proven to be lying in affidavits on important details aimed at stripping access of a parent to their own children. The court has the power to punish people now, but doesn't

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That would be nice. There being no real consequence to lying is likely to just force the other party to lie too, in order to try to level the playing field. In the end, it's the truth that suffers.

As a little update to my case, my ex has actually shockingly (to me anyway), in her family court affidavit, admitted to a couple of incidents of violence towards me (while still maintaining that I was also violent to her). What I am wondering is, can I use this affidavit in the Magistrates Court to demonstrate that her narrative that she was the victim and I was the perpetrator is untrue? I still deny being a perpetrator of violence and have not admitted to it at any stage. I understand that the magistrate will likely say that just because she has been violent, that doesn't mean I haven't been. I understand that I might still have to somehow prove her claims about me to be wrong. But how much do you think it would weaken her case? Alternatively, I imagine the magistrate might conclude that at the very least, we both have been violent. If so, in a situation where both parties are 'equally to blame' for a violent relationship, is it still the case that whoever gets in first with the intervention order 'wins' or do you think a magistrate is going to dismiss it due to the lack of a clear victim and perpetrator?

I guess the problem with this question is that it's hard to get into the mind of a magistrate, especially when each one will have their own opinion on how to handle situations like this. Maybe there's precedence, maybe there are guidelines? Would this admission from my ex of violence towards give me grounds for an intervention order against her? My understanding is that if there is no current threat of violence (since we have no physical contact now because of her intervention order against me), then a counter intervention order is therefore unlikely to be granted.

Rod said:

Strictly speaking - no. A self repper might get away with it. Better to ask for permission from the family court (FCC?)

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Hmm, do you know on what basis it wouldn't be allowed? I don't pretend to understand the rules of evidence in various courts but I would think a sworn affidavit, even if from a different court, should be about as good as evidence gets? Could she be cross-examined and asked about her affidavit then, and whether she indeed admitted to being violence in it? I mean, I don't understand how that couldn't be relevant?

Rod said:

I suspect you know the answer but were hoping for a miracle - No idea. Depends on the detail of your case.

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Yeah, I figured that was the case. Still, it's worth a shot. I intended to contest it regardless, even with the recognition that it's often difficult to prove the absence of something like violence and especially when the balance of probability seems to lean towards the accuser being automatically believed, but if I can use her admission, so much the better.

Ahh, I see. Frustrating though, because such a rule contributes to the 'wrong' decision being made in a different court case. I assume that I could possibly still bring the subject up in cross examination though, even if I couldn't submit the affidavit itself as evidence? And when I was questioned by my barrister, say that I saw with my own two eyes the affidavit in which she said it. Or do you think that would also be prohibited?

Anyway, it does sound like her admission in the affidavit would still be useful evidence for me in the court it was submitted to (the Family Court, where the most important aspects will be nutted out over time), and might help to minimise the impact of any unfavourable outcome in the Magistrates Court, should I be unable to persuade the magistrate of my innocence. In other words, a family court judge may think: "Yes, you were found to have committed violence in your intervention order case, but by her own admission, so did your ex, so I won't draw any substantial conclusion from this result at this stage". Anyway, again, this is all speculation and perhaps more speculative than can really be useful at this stage, but it's still good to think about how certain things are likely to play out.