VIC Contested intervention order hearing

[GlassHalfFull]

Hi all, I have a contested hearing coming up shortly, and although I have a family lawyer involved in the family court, I have not engaged a lawyer for the IVO and therefore am self representing.

I've been advised (both by the lawyer and here in this forum) not to contest the IVO because of how difficult it is to win and the potential effects on the family law case, and I have taken that feedback on board. However, I think I have a pretty strong case that my children should not be on the order, especially now that I have family court orders saying I can have unsupervised access and any prior concerns about the safety of the children has been dismissed by the court (family report writer, ICL, etc) to get to that point.

So my question is, when I turn up on the day for the contested hearing, can I consent without admission to the IVO between my ex and I, while also arguing to have the children taken off the order? If so, what would the procedure be for that and what would I need to say? The problem I have is that being self-represented, I really don't have any clue about how a contested hearing is supposed to proceed, whether the magistrate will allow me to read out a prepared statement outlining my argument for why the children should be removed while also allowing me to consent without admission against my ex, or whether it will be heavily procedural and I will not understand how and when I am to make my request.

I also do understand that I can try to negotiate the children being removed from the order outside of the court between the police prosecutor and a duty lawyer. However, this has been rejected by them on previous occasions mainly because child protection still had an open case and family court hearings were still afoot and nothing had really happened at that point yet. It's frustrating that there is so little information out there about contested hearings.

 

[Atticus]

I also do understand that I can try to negotiate the children being removed from the order outside of the court between the police prosecutor and a duty lawyer

This would be the normal approach prior to appearance... Bring along your family court orders. Ask that the IVO that you agree to without admission be amended to reflect the conditions of the FCO, ie, that you are not restrained from seeing your kids unsupervised, in the manner set out in those orders.... If they don't agree to that, then take it up with the mag... Family court orders have precedence over state orders anyway. There shouldn't be any opposition... Also check carefully that the amended IVO doe's include the amendment

 

[GlassHalfFull]

Right, I will do that. Do you know how a contested hearing is structured though? I mean, how formal is it? I just don't want to turn up only to find that because I hadn't filled out form 21J or whatever that I'm not able to speak. I was already warned at the directions hearing that if I am self representing, I am unable to cross examine the 'protected person' (my ex). I don't really intend to cross examine her because I'm willing to consent without admission on the matter of her and I, but I assume I can still provide evidence of my own to support my case regarding the children. The way I see it, my children have been tacked onto the IVO but the 'issues' are almost totally separate in the sense that whatever vague accusations she has made about me and the children have almost nothing to do with what she has accused me of regarding her. If the magistrate is not keen to remove the children from the order without going through the full contested hearing, how can I separate the children and my ex partner? Is it possible? Is it totally at the whim of the magistrate on the day? So many unknowns here. There is just nothing out there in terms of information about contesting an IVO... I'm going in blind and it's worrying. I just hope sanity will prevail. My family lawyer did say that the magistrate tends to be a bit more lenient on process when you're self representing, so hopefully that is the case.

 

[Atticus]

Do you know how a contested hearing is structured though? I mean, how formal is it?

Contested IVO hearings are a civil matter not a criminal matter, so you would expect a little more allowance for SRL's... You may have already looked on line at legal aid but this link may help >>> What can happen at an intervention order hearing | Victoria Legal Aid

Personally I think if you have no problem with accepting without admission the order restraining you from contact with your ex & just want the kids removed then just structure your approach to that end. In other words, no need to spend lots of time & effort on discrediting her reasons for adding kids if you have a family court order in hand that allows you unsupervised contact.... You just need the confirmed IVO to reflect the contact conditions allowed in the FCO

 

[CarlD]

Hi GlassHalfFull,
I'm in a similar position, I have a contested hearing coming up and I'm considering consenting without admission

How did you go?

Did consenting affect your family court proceedings?

 

[GlassHalfFull]

Hi GlassHalfFull,
I'm in a similar position, I have a contested hearing coming up and I'm considering consenting without admission

How did you go?

Did consenting affect your family court proceedings?

I haven't had any family court proceedings since then but my lawyer advised me that it wouldn't have any significant bearing on the family court proceedings as without admission isn't any finding of violence, and is nothing more than an untested allegation (which I assume would be present in the family law side of things anyway).

In the end, my family law lawyer wrote to the police prosecutor and asked for my children to be removed from the order if I consented without admission because of the family court proceedings - they agreed that the family court should be where issues related to the children should be dealt with anyway and accepted the consent without admission.

I actually wish I had gone through with the contested hearing in some ways though. The way things happened on the day was odd. I advised the clerks on the day of the hearing that I was willing to consent without admission on the basis that my children were removed and they said they would let the police know and that they would call me to speak with me prior to the hearing to discuss it. I waited and waited (maybe 3 hours) and finally I was advised to go into the court room where the police prosecutor was waiting for me (no magistrate present at the time though). They said that my ex had already left the courthouse and that her case was pretty weak but that they would accept consent without admission and the order finalised for a further 6 months, so I think they were actually somewhat relieved that I was willing to consent without admission rather than fight it. I actually wonder what would have happened if I changed my mind and rescinded my lawyer's offer to consent. If my ex had already left, it would have been very difficult for them to argue on her behalf I assume. Would the magistrate have awarded it in my favour automatically, or would they have rescheduled it for another day...? I wonder. Either way, for the sake of simplicity, I'm happy with the outcome. I don't care particularly about having any contact with my ex, I just wanted my children off the order. Yes, I'm still concerned that my ex will try to have me charged for breaches but I'm being careful only to discuss the children (as the order allows for, particularly as I also have family court orders that specifically order us to communicate about the children...).

 

[CarlD]

Thanks for that advice.. Instead of telling the clerk I was going to consent without admission I thought I'd at least go before the Magistrate and see what mood they were in and it worked, the magistrate strongly suggested the other party accept an undertaking, and they did.

 

[GlassHalfFull]

Thanks for that advice.. Instead of telling the clerk I was going to consent without admission I thought I'd at least go before the Magistrate and see what mood they were in and it worked, the magistrate strongly suggested the other party accept an undertaking, and they did.

Congratulations. The way things happened for me on the day was a bit crap. I had previously (for all prior hearings) had access to the duty lawyer on the day to negotiate on my behalf. When I turned up on the day of the contested hearing, the clerk refused to book me in to see the duty lawyer as duty lawyers apparently don't have time to help you for contested hearings (even just to provide advice or negotiate with the other side), only directions hearings and mentions. I was a bit blindsided by this as I knew they wouldn't take on your actual case like a paid lawyer, but I expected to be able to speak to one at least - I was refused.

If I had the benefit of the duty lawyer, I may have been able to handle it better on the day. As it turned out, I was kind of bailed up by the police prosecutor in the court room. And not only that, they had apparently already talked to the magistrate and advised them that I wanted to consent without admission, because not long after I said yes to consenting without admission to the police prosecutor, the magistrate came in and said "I understand you are consenting without admission". It seemed like the magistrate and police were talking between themselves without me being present to know what was being said, which seemed pretty unfair. And like I said, my ex had already left by that point.

So essentially, it went from me telling the clerk that I wanted to speak the to police prosecutor about consenting without admission (with conditions) and waiting for hours to get that opportunity. In the mean time, the magistrate and the police prosecutor had a little chat about it without my even being there, and they reached a conclusion about it in my absence!! I know civil matters are a bit more informal than criminal, but doesn't that seem a bit fishy? Shouldn't I be present when the magistrate is dealing the police prosecutor about my case??