VIC Vexatious and litigious ex

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GlassHalfFull

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28 August 2018
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Either way, that sounds I was the victim of some real procedural unfairness if even the magistrate doesn't understand the law she's handing down and the legal advice she's bound to give me is actually wrong, effectively putting me in a position where I felt I had little choice but to consent without admission because I couldn't justify the cost of a private lawyer. :( It's a bit like telling someone accused of murder "you're poor and can't afford a lawyer, you probably should just plead guilty now and get yourself a reduced sentence"... ;) (neglecting to mention that they are entitled to innocence until proven guilty and entitled to a defence regardless)
 

Rod

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27 May 2014
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Possibly, but we are now hijacking the OP's thread.
 

Atticus

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6 February 2019
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Apologies to @Dpj for the sidetrack ....
Either way, that sounds I was the victim of some real procedural unfairness
I think you have a right to feel peeved, assuming that the section existed at the time.... Personally I reckon some magistrates are fairly lax when it comes to DV hearings.... It doesn't fall under criminal law (unless it's a breach) & the general attitude appears to be that there are no real, lasting consequences to the respondent. Well that's crap..... More so these days as some jurisdictions now assume children be included as affected persons unless there's good reason NOT to include them.
 

GlassHalfFull

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28 August 2018
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At the risk of sidetracking further, I really believe that magistrates have an obligation to hear from *both* sides before making an order - even an interim order (which can take a year to fight given backlogs). I mean sure, put in place an emergency protection straight away, but let's say within 2 weeks of that being put in place, both sides must be heard, so the magistrate can get a feel for whether the DV is legitimate or not. Hearing one side is never going to give them any kind of true understanding, especially when no evidence is offered.

I imagine that may make magistrates feel like they're between a rock and a hard place, not having fully tested all the evidence yet and hearing two very different narratives, but it would surely avoid the most egregious cases from going through to a contested hearing with the poor respondent suffering very real consequences in the mean time (being kicked out of their home, deprived of their possessions, not seeing their children etc).

I have no idea whether I could have convinced the magistrate that I was innocent, or at the very least that what little truth there was amongst the BS did not meet the threshold for an order. I don't know whether they would have erred on the side of caution no matter how much cold water I could pour on the allegations. But I really wish I had been given a chance, without having to wait a year just to get to a point where I could be heard. The whole process is very unfair and biased against anyone unlucky enough to have a vindictive or mentally ill ex-partner.
 

Tim W

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28 April 2014
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Interim orders are made where urgency is a factor.
The "interim" is the period between "now" and
"when we can get everybody into court for a proper hearing".

When an Interim AVO is made, it can be made ex parte.
That is, it an be made with only one side present.
Typically this is the applicant (such as the police),
but can also be the PINOP on their own behalf.
 

GlassHalfFull

Well-Known Member
28 August 2018
380
32
714
Interim orders are made where urgency is a factor.
The "interim" is the period between "now" and
"when we can get everybody into court for a proper hearing".

When an Interim AVO is made, it can be made ex parte.
That is, it an be made with only one side present.
Typically this is the applicant (such as the police),
but can also be the PINOP on their own behalf.
Except in my case, "interim" lasted for 13 months. I had to go through two mentions and a directions hearing with no opportunity to argue my case at all.

What I was arguing for (and I fully understand that it doesn't currently operate like this, and maybe there are good legal or logistical reasons why it couldn't) was that a magistrate should have to hear the respondent's side of the story at the very first opportunity which in my case was the first mention, three full months after the interim order was made ex parte and already far too delayed. At this mention, I wasn't given any opportunity to speak or otherwise make a case to give the magistrate my account and reasons why the claims were false and twisted, so only the applicant's story was ever heard.