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VIC What to Expect from an Intervention Order Contested Hearing?

Discussion in 'Family Law Forum' started by Anxious111, 4 August 2017.

  1. Anxious111

    Anxious111 Member

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    Hi,

    I am the protected person on a police application for an intervention order. The respondent is contesting the order.

    It appears that his argument is that I am overreacting to his actions, which were not intended maliciously, and that he now understands I am serious about not wanting to be contacted by him.

    I am very nervous about the contested hearing. I do not know what to expect. The information I have found online does not go into detail about the contested hearing.

    My questions are:

    1. Is a contested hearing likely a lost cause for the applicant? I presume no lawyer would represent the respondent if he was unlikely to "win".

    2. What can I expect on the day?

    3. What kind of questions could be raised during cross-examination? I am very concerned about this part. In particular, if the respondent or his lawyer question me about my r*pe I don't want to go forward with the hearing because it is possible that I would have a panic attack while in court.

    4. What happens if the respondent arrives to court without a lawyer? I have read that the magistrate determines if the respondent is allowed to cross-examine me personally, but I have also read elsewhere that he would automatically not be allowed to question me. So I am a bit confused on this point.

    I really appreciate any suggestions you can provide.
     
  2. AllForHer

    AllForHer Well-Known Member

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    1. Why would a lawyer refuse to represent a client bound to lose? They get paid either way. To your benefit, though, it's usually a lost cause for the respondent, rather than the aggrieved, because the Court takes a better-to-be-safe-than-sorry approach to intervention orders, especially in the current climate of social panic about domestic violence.

    2. On the day, your matter will be listed among some others and the judge will call you when ready. Your lawyers might talk beforehand to see if you'll agree to undertakings (which is a promise to behave; this will mean no trial but is unenforceable, however, it does make it easier to get an intervention order in future) or a dressed-down version of the orders you're seeking. This is particularly common practice if there's a child involved. If not, however, you'll enter Court, each lawyer will make an opening statement, both parties will be cross-examined on the evidence they've provided, and the Court will determine an outcome. Prior to the hearing, you can request to wait in a safe room away from your ex.

    3. In cross-examination, his lawyer will question you about your evidence, highlighting any inconsistencies, seeking more detail about allegations made, basically trying to discredit you as a witness. I understand your apprehension about being questioned on sensitive matters, but it's fundamental due process, and he has a right to defend his case, just as you have a right to defend yours. You will be asked for facts, not speculation, so say what happened, not what you think the judge wants to hear. The judge needs to see that you're an honest witness, and truth be told, if you experience visible distress being questioned about an incident, the judge will likely intervene, and take on board your response to the line of questioning. If you can the whole process for fear of being asked about something you said happened, you're going to look like a dishonest witness and it's going to be extremely difficult to protect yourself in future.

    4. State legislation doesn't restrict a respondent from questioning the aggrieved, but if he arrives at Court without representation, you can ask the Court to consider your matter 'on the paper', which means it will only consider what's in the affidavits without cross-examination. If he was represented leading up to the trial, then he will need to explain to the Court why he's suddenly appearing unrepresented, and it will be up to the Court to determine how it proceeds with the matter.

    Look, you really need to have some faith in how this system works. An intervention order is not a criminal matter, so the Court is liberal with its decisions to protect an aggrieved party on grounds that it is better to be safe than to be sorry. Can you imagine the hell that would be reigned down upon a magistrate who rejected an intervention order application in a contested hearing, and then the aggrieved wound up dead at the hands of her ex? The consequence to the respondent of having an intervention order made against them is nothing compared to the risk to the aggrieved if the judge gets it wrong and dismisses the application. The only time I've ever seen an intervention order refused has been where the evidence provided by the aggrieved was historical and required a convoluted interpretation to actually be considered domestic violence.

    If you want no contact from your ex, then don't discontinue your application. The odds are in your favour.
     
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  3. Anxious111

    Anxious111 Member

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    Thank you so so much!! This helps a lot. My situation is probably similar to the one you saw refused. But it is good to know that the courts err on the side of caution.
     
  4. AllForHer

    AllForHer Well-Known Member

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    Also, I note that your application is a police application.

    That speaks volumes about the likelihood of success. Police won't pursue an intervention order to Court if they don't think the judge is going to rule in their favour. Too much paperwork for the police to waste time on applications they think are frivolous.
     
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