In Victoria, intervention order claims may have a permanent effect on the living arrangements of a person, as well as his/her contact with children, job opportunities, and personal reputation. The Magistrates’ Court is empowered under the Family Violence Protection Act 2008 (Vic) and the Personal Safety Intervention Orders Act 2010 (Vic) to place conditions upon a respondent restricting the places he or she may live, work, and with whom he or she may be in contact. The necessity to act swiftly and strategically is key to achieving the most suitable result.
Hiring an experienced intervention orders lawyer at the first level provides the respondent with the best foundation of defence. A lawyer can provide the merits of the claim, counsel on the options available, and strategies based on the circumstances at hand. The following is a summary of the major defence mechanisms applied in the Victorian intervention order issues.
Contesting the Application
The most immediate defence strategy is to appeal the application in a hearing. To obtain a Family Violence Intervention Order (FVIO), the magistrate should be convinced on the balance of probabilities that there has been family violence and that there is a likelihood of the same. The defence may point to the fact that the alleged behaviour does not fit the legal definition of family violence, that the events described did not take place the way they claim they did, or that the evidence produced is insufficient.
Lawyers also prepare for the contested hearings by gathering evidence to prove otherwise against the account of the applicant. Some of the common types of evidence are:
- Text messages and emails: Messages that give a background or contradict the claims in the application.
- Photographs and location data: Evidence that supports the account of the respondent (or proves that he or she was in a particular place at a certain time).
- Witness statements: Eyewitness reports of independent witnesses that can address the situation or the nature of the relationship.
The lawyer cross-examines the applicant during the hearing and any witness to bring out inconsistencies. The court hearing process requires proper preparation because the decision to impose conditions and the duration of the same are dependent on the result of the court hearing.
Consent Without Admissions
The order may not be the most viable thing to argue against in certain instances. A respondent is able to agree to the order without pleading guilty to the charges. This would imply that they are willing to abide by the conditions, but they are not willing to agree that family violence took place. This is a method that will not create the uncertainty of a contentious hearing, yet will not create a formal finding of fact against the respondent.
Offering an Undertaking
An undertaking is an official written commitment to the court by the respondent to act in a particular manner. In case of acceptance of the undertaking by the applicant, the application is normally withdrawn. An undertaking is not a court order like an intervention order, and a breach of an undertaking is not a criminal offence. Police do not take undertakings when they have already initiated the application.
Negotiating Conditions
A lawyer can bargain the terms of an order even in cases where the respondent does not object to the issuance of an order. The conditions of default can be too general or unrealistic, especially where the respondent and applicant have children, a place of work, or reside in close vicinity. A lawyer can offer other conditions that will yet offer protection to the applicant and reduce unnecessary limitations to their day-to-day activities.
Varying or Revoking an Existing Order
In case of a variation or a revocation of an order, the respondent can seek an application in the court in case circumstances change following the making of an order. The respondents are required to request the court’s permission by applying for leave first. During the hearing, they should prove that their conditions have changed a lot since the order was initially issued. The given strategy is especially applicable in situations when the state of affairs has turned unsustainable or the relationship between parties has changed.
Cross-Applications
A cross-application of an intervention order can be suitable in the case when the violent or threatening behaviour has also been committed by the applicant towards the respondent. This will provide protection to both sides and provide the court with a full picture of the situation. It is also able to show how the initial assertion might have been strategic and not real.
Conclusion
The order of intervention claims needs a strategic and timely response from the law. From challenging the application to requesting variations or making cross-applications, every strategy has a different purpose. Hiring an attorney at the initial stage is to make sure that the rights of the respondent are not violated during the proceedings.
