VIC Intervention Order - Help with Further and Better Particulars?

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GlassHalfFull

Well-Known Member
28 August 2018
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Hi all,

I currently have an Intervention order that I intend to contest. At the last hearing, through my duty lawyer, I requested further and better particulars and the magistrate granted this. He set a date for this a little over a month before my directions hearing, and this date has now passed. I have called the court a couple of times since that date and asked if further and better particulars had been submitted and was told that they had not. I asked what consequences there would be for it being late, or even not submitted at all, and they said they could not discuss this as it was a matter of the magistrate to decide.

So my question is, are there any consequences in practice? I am also confused about whether the case can actually proceed if the further and better particulars are not submitted, because my understanding was that by asking for further and better particulars, that would be essentially asking for them to state their case in more detail so that I may know how to proceed at the directions hearing, and therefore defend myself against it.

If they do not provide it, how can I prepare my defence properly? Does it mean that they can only present their case on the basis of the text of the interim order without any elaboration, since to introduce anything further would be new? How does it actually work? As my time with the duty lawyer was brief at the last hearing, we did not really discuss how the next step would work in practice. They simply recommended that we should get further and better particulars first and that on the day of the directions hearing, I could meet with the duty lawyer to decide how to proceed.
 

Tremaine

Well-Known Member
5 February 2019
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Housekeeping - I’m not a lawyer and this isn’t legal advice.

I’m in Queensland but I think the process is fairly similar I’m Victoria.

The application for a protection order is sort of a ‘prima facie’ opportunity for the parties to decide if it’s going to go to trial or if the respondent would rather just accept without admissions. Basic facts are provided, the court decides if a relevant relationship exists and if the facts look like domestic violence at first instance, and then asks the respondent what they want to do.

Asking for further and better particulars at a mention is kind of like saying ‘I need more information about what you’re alleging before I can decide whether I’m going to contest or accept’.

If no further particulars are submitted, the next mention will probably look a lot like the first one - look at the facts, decide if the fundamental elements are met, ask the respondent what they want to do. You can tell the magistrate that you requested further and better particulars and they might adjourn so the other party has more time to submit them, but it also might just ask you whether you’ll accept or want to set a date for trial regardless (because they will have to submit a trial affidavit with all those particulars anyway). It could throw the matter out, but I don’t think that’s a very common outcome, particularly in Victoria.

If your ex is represented, it might be a good idea to write to her lawyer and ask if they intend to provide further particulars as requested at first mention.
 

GlassHalfFull

Well-Known Member
28 August 2018
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Thanks for your thoughts Tremaine.

My ex is represented by the police, so I have no idea how to contact them or even who their representative is since it seems to be whoever turns up on the day to deal with all the police matters.

I've had two mentions hearings already, and the magistrate hasn't seemed to be remotely interested in looking at whether my ex has a strong case or not (although I imagine it was done when it was initially submitted - I wasn't aware or present at that first hearing, however).

I would argue she doesn't have a strong case though and I intend to contest it. The initial intervention order I received was full of lies, exaggerations and twisting of truth which I believe I should be able to poke holes through given the chance. The problem is, there hasn't been any opportunity yet, and this has already been dragging on for 7 months since I first received the interim order.

So if she doesn't submit the further and better particulars before the directions hearing, despite the magistrate's request that she submit them 6 weeks prior to that directions hearing date, I will be rather annoyed if he adjourns it further to give her more time given how much time has already passed. She has had 2 months to submit the further and better particulars already!! I am keen to push this case forward because already as it stands, it is looking like being as much as 10-12 months before I will get to a contested hearing, and I have had zero opportunity to contest it or have it sanity checked. Which is just crazy considering how easy it appears to be to get one of these orders, and how hard and long-winded it is to contest them.

Interesting that she will have to submit a trial affidavit, I wasn't aware of that. But I assume that will be submitted AFTER the directions hearing? I thought the merits of her case needed to be presented at the directions hearing though? How will I even know what her case is and whether I should consent or contest it if she has offered no substance despite the magistrate requesting it? Are further and better particulars effectively optional?

I also thought maybe the further and better particulars would form the written evidence for trial. This is my first time going through this sort of thing so the ins and outs and pretty foreign to me, but we already also busy in the family court on parenting matters so we've both filed affidavits there. I have a family law lawyer representing me there, but can't really justify the cost of involving them in the intervention order too, so I've been relying on duty lawyers.

Yeah, although having the case thrown out would be my ideal situation, I have a feeling that's unlikely to happen since I feel like the intervention order is being used as a tool to advance her case in the family court rather than because she genuinely needs protection. I've already asked to do an undertaking and it's been rejected (apparently the police never accept undertakings), but my duty lawyer said they received advice that my ex was intending to pursue it and was not interested in any compromises, so that seems to have set the tone!
 

Tremaine

Well-Known Member
5 February 2019
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514
No, she doesn’t need to present the ‘merits of the case’ at the mention. All the court is deciding at that point is two elements:

1. Is there a relevant relationship between the aggrieved and the respondent to fit within the parameters of an AVO?
2. Does the behaviour complained of by the aggrieved reflect domestic violence?

Domestic violence has a very loose definition - it can be anything that causes the aggrieved to fear for their safety, so even just writing ‘he yelled at me’ is enough to satisfy a magistrate that an act of domestic violence has occurred.

This loose definition plus the civil standard of proof also means they’re harder to contest, harder again when they’re being sought by police on behalf of the aggrieved.

But whether or not you should contest isn’t your question, so let’s not dive down that rabbit hole without good reason.

The part that happens after the magistrate has been satisfied of the two elements above is where the extra particulars is concerned. That part is the magistrate asking you if you want to accept the terms of the order without any admission of guilt, or if you want to contest it at trial. If the facts already provided haven’t helped you decide either way, then you can request more particulars, but if they don’t provide more, you may have to decide without them (especially if you want to avoid another adjournment).

Something to remember as well is that if the police are seeking the order, discontinuing the application won’t be a decision your ex gets to make. Only the police will be able to make that decision.
 

GlassHalfFull

Well-Known Member
28 August 2018
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even just writing ‘he yelled at me’ is enough to satisfy a magistrate that an act of domestic violence has occurred.

But are you talking about in satisfying the magistrate to allow the case to go to trial, or satisfying him enough to create a final order and reject your contest of it? Because if all it takes is a claim (without any evidence) of something vaguely considered violence that almost any person in a couple has done at some point during a disagreement, how could it ever be possible to contest one? It's not possible to absolutely prove something didn't occur (unless you have an alibi that says you weren't even there on that date and time perhaps).

I know my original post doesn't really ask whether I should contest or not, as you say, but I am yet to get a very concrete answer on just what constitutes a sufficient case. It's frustrating, because I do believe the facts (if you could call them that) in her intervention order are exaggerated and twisted and largely untrue, but because the bar is so low for violence, even if I do explain away 99% of her claim, it seems that even 1% of doubt may be enough for me to lose it. It's just a stupid system. I wonder why they even create a pathway for people to contest it if it's near enough impossible to succeed.

I think any reasonable magistrate would see her case as being very weak and the IVO entirely unnecessary for her 'protection', but in this political climate, I wonder if he/she would have the guts to take a risk and actually say so. I guess that question will remain until I go through with it. The problem is of course that apparently, a finding of violence (no matter how weak) may have consequences in my family law matter. So there's potentially a lot to lose and very little to gain, with very little chance of success. Frustrating. Very frustrating.

Something to remember as well is that if the police are seeking the order, discontinuing the application won’t be a decision your ex gets to make. Only the police will be able to make that decision.

Yeah, that's an interesting one. But they may reconsider whether the claim is strong enough to warrant following it through if she is unable to provide further and better particulars. If the system was more balanced in terms of evidence required and the balance of probabilities that a given event actually occurred, I might feel more confident. It seems like a kangaroo court at times, to be honest.
 

sammy01

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27 September 2015
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You'd be better to accept without admission. It will be back dated to the time of application and will expire in 4-5 months... Chances are that will happen sooner than a trial to contest the thing.
 

GlassHalfFull

Well-Known Member
28 August 2018
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2,289
You'd be better to accept without admission. It will be back dated to the time of application and will expire in 4-5 months... Chances are that will happen sooner than a trial to contest the thing.

Yeah, if it does get backdated, I might just go for that then because as you say, it might be over sooner than contesting it. Because the way things are looking, you're right... A trial might end up taking more time than the 12-month order. But I was concerned that consent without admissions might end up being 12 months from the consent date, rather than backdated to the date it was first taken out. Lots to discuss with the duty lawyer at the next hearing I guess.

All I can do is repeat what I already said. What a messed up system. I don't know of any other area of law where there is such potential for injustice. At least if you were actually charged with something, real evidence would need to be provided, and you'd have the benefit of being considered innocent until proven guilty.
 
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Jake Matherson

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15 June 2018
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Can confirm I'm +12 months into fighting a DV claim against me made by the police.

You're guilty until proven innocent.

The police will do everything possible to drag the matter on for a seemingly never ending amount of time due to their incompetence and inability to communicate with their own varying departments.
That is to say the communication channels between the prosecutor in the court room and the arresting officer back at the station are seemingly non-existent.

For instance, we sought full disclosure i'm assuming that is "better particulars" in your case which took 8 weeks to get.

We knew for a fact that they left out some relevant information so back to court we go to request that left out information, + 16 weeks to get that because they didn't have it ready at the first 8 week date.

You're in for a loooooooooooong battle if you go up against them and you're experience is anything like mine. It is quite a circus.

But good luck.
 

sammy01

Well-Known Member
27 September 2015
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In nsw, it is back-dated to the time it started.

Yep - I get your pain about the injustice. At the time it caused me a world of pain. But.... But after a while I kinda liked the thing. The law told me I wasn't allowed to talk to her. So she is calling me up on the phone, sending messages, telling me to call her back and I was legally forbidden. Best year of my life....
 

Tremaine

Well-Known Member
5 February 2019
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Ah, see, you’re looking at this like it’s a criminal matter already. If the act of violence in question was a criminal matter, the court would need to be satisfied beyond reasonable doubt that the act has taken place.

AVOs aren’t criminal matters, though, they’re civil matters, so the standard of proof is on the balance of the probabilities, which means the court just needs to be satisfied that it’s more likely than not that the actions in question caused the person to fear for their safety. It’s one of the few fields of law that puts a lot more weight on feelings than facts, and not just feelings, but feelings of the individual aggrieved, rather than the legally generic ‘reasonable person’. The court can’t dictate how someone’s actions made another person feel, so it’s very easy for it to make an AVO when the standard of proof is just on the balance of probabilities.

The current political climate around domestic violence probably does compel courts to be more liberal with granting AVOs, but they also don’t want to get it wrong and have all and sundry come down upon them if the aggrieved in a case thrown out winds up dead at the hands of the respondent. To make an AVO comes with very limited consequences for the respondent unless they breach it, so why not? (Don't answer that - I'm as frustrated with the system as you are, but it's not something we can necessarily control at this point).

As to the family law matter, an AVO alone doesn't generally have much gumption in FamCA/FCCA. When accepted by admissions, there's no tested evidence to suggest the allegations made about domestic violence should be accepted without further scrutiny from the court. The judges in FamCA/FCCA are focused more on the risk of harm to the child, rather than to the parent, and the consequences of finding that such a risk of harm exists really does come with consequences, not just for the respondent, but also for the kids, so the judges of the FamCA/FCCA tend to be a lot less liberal about what poses a risk of harm to the child as required under the FLA.

BUT an AVO made after a trial is a little more complicated, because in those circumstances, the evidence has been tested and a finding has been made that domestic violence has occurred. The FamCA/FCCA then has to determine whether a risk of harm to the kids exists against the backdrop of domestic violence already having been proven, whereas an AVO accepted without admissions means the FamCA/FCCA is more or less starting from scratch to make that determination.

If you were to ask the question 'Should I contest the AVO?', I would say it's better to just accept without admissions, but conditional on a) kids being removed as named parties in the order (if they are named), and b) that communication be permitted when in relation to the kids. Then, I would say just focus on your family law matter. That's where this stuff is really important.