During the Hearing

The Hearing Process

When the parties return to Court for the Intervention Order application hearing:

• Let the Registrar know you have arrived.
• He/she will ask if you want to speak to a Support Worker, or a Duty Lawyer (who can represent you in Court). If the police took out the application, the Registrar may ask you to speak to the police prosecutor, police lawyer or the police liaison officer.You will be directed to a waiting area. (The Duty Lawyer and Support Worker will be there).
• If you have elected to speak to a Duty Lawyer, he/she will talk to the other parties lawyer about what you want, and try to come to an agreement.
• If an agreement is reached, your application will be called before the Court. The Magistrate will then make the order agreed upon.
• If an agreement is not reached, your application will be called before the Court and the Magistrate will adjourn your application to another day. The Magistrate can make an ‘interim intervention order’ (that provides protection until a ‘final order’ is made), if you do not already have an order in place.
• When the order has been made, the Registrar types it up and gives all parties a copy. Parties can leave Court. If you are concerned for your safety, tell your lawyer, the police or the Registrar, and they will assist you.

NOTE: Other people can come into the courtroom and listen to your case. However, your lawyer can request the Magistrate make an order to ‘close’ the Court. If granted, only people who are involved in the case can be present. If the police have applied for your Intervention Order, a police prosecutor, police lawyer or police liaison officer will also be in Court.

REMEMBER: You may be at court all day. There may also be a number of hearings and court dates before the Court makes its decision. When you make your initial appointment, please ensure you allow enough time, and understand that you may have to visit Court more than once.

When you come to Court, it is best to try to organise childcare for your children if possible. Community support services may be able to help you arrange childcare.

You can also bring a support person with you to Court. This can be a friend or family member, or a worker from a community service organisation.

You may also want to bring some food and drink with you to court. 

Giving Evidence

When an applicant makes an application for an Intervention Order, they may have to give evidence before the Magistrate. Here is the process:

• The Magistrate will ask the witness to step into the witness box and remain standing.
• The Magistrate will ask the Court clerk to swear the witness in. They will be asked if they want to take a religious oath, which means swearing to tell the truth on the Bible or other religious text, or a non-religious affirmation, which is a promise to the Court that you will tell the truth.
• The clerk will ask the witness to tell the Court their full name and occupation. The witness will then be asked to sit down.
• The Magistrate, or a lawyer if the applicant has one, will then ask the applicant questions about the information included in the application.
• The Magistrate will excuse the witness from the witness box, meaning they can return to your seat.

Giving evidence in a contested hearing:

• The Magistrate will ask the witness to step into the witness box and remain standing.
• The Magistrate will ask the Court clerk to swear the witness in. They will be asked if they want to take a religious oath, which means swearing to tell the truth on the Bible or other religious text, or a non-religious affirmation, which is a promise to the Court that you will tell the truth.
• The clerk will ask the witness to tell the Court their full name and occupation. The witness will then be asked to sit down.
• The Applicant's lawyer will ask questions about the information in the application.
• The Respondent’s lawyer will ask questions about the information provided to the Court.
• The Applicant's lawyer can then ask further questions.
• When questioning is complete, the Magistrate will excuse the witness from the witness box. The witness can return to their seat.

IMPORTANT: The Respondent cannot cross-examine or question the AFM directly. Only the a lawyer can cross-examine or question the AFM. Without a lawyer, the Respondent also cannot give evidence in relation to what the AFM has said in Court.

Orders a Magistrate Can Make

Interim Intervention Order

Prior to the hearing, a Magistrate can make this order before the Respondent knows about the application. It remains in place while an application for Intervention Order is before the Court, and remains in force until the Court makes another order.

Final Intervention Order

This is made if the Respondent agrees to the order being made, or after the Magistrate has heard all the evidence presented to the Court and believes an order should be in place. It usually lasts for 12 months, sometimes longer.

Undertaking

An undertaking is an agreement drawn up between the applicant and respondent and is not enforceable by police. It is a signed promise that the Respondent will not behave in any way stated in the undertaking. The application for the Intervention Order will be withdrawn, but there will be a ‘right of reinstatement’. This means if the Respondent breaks the undertaking, the Applicant can bring the application back before the Court.

Further and Better Particulars

This is a document that outlines the allegations in an Intervention Order application. They provide detailed explanations of what happened in each allegation. A Magistrate can order further and better particulars if a party to an intervention order requests them or if it will assist the Magistrate.

Counselling Orders

At some courts, Magistrates can order male Respondents to attend Men’s Behaviour Change Counselling Programs (MBCP). These aim to promote women and children’s safety by holding men accountable for their use of violence towards family members. The Program gives Respondents an opportunity to better understand why they may have acted violently, and teaches them non-violent ways of relating.

Respondents can apply for counselling orders to be changed or cancelled. This will only be allowed if there are is no approved counseling the Respondent can reasonably be expected to attend, or if there are other significant changes in circumstances. It is a criminal offence for a Respondent to disobey counselling orders without reasonable excuse.

Note: Counselling orders can only be made by Magistrates in the Family Violence Court Divisions at Heidelberg and Ballarat Magistrates’ Courts, and at the counseling courts at Frankston Magistrates’ Court and the Moorabbin Justice Centre. Please see the Counselling Orders section of this site for more information.

Struck out/withdrawn

An application can be struck out if the Applicant does not attend Court on the hearing day, or if the Magistrate believes there is not enough evidence for the Intervention Order application to be made. An Intervention Order application can also be withdrawn if the Applicant no longer wants to pursue it.

Order refused

After hearing evidence, the Court can refuse to make an Intervention Order if it believes there is not enough evidence to support the application.

How orders are served

The Court sends  any orders made to the police station closest to where the Respondent lives. The police then attempt to serve these in person on the Respondent. If the Respondent is present at Court when an order is made, a Registrar can serve it immediately on the Respondent.