VIC Intervention Order - Help with Further and Better Particulars?

[GlassHalfFull]

No, I understand they're not criminal matters, but they have consequences that are not far off criminal matters... Family courts seem to look at them as though they are a finding of violence against you (where there's smoke, there must be fire), albeit a weak untested one. And they DO cause you to lose contact with your children (at least until the family court comes and mops up the mess they create).

So while they may just be civil matters, I don't agree that they have limited consequences. I didn't see my children for more than 3 months until I managed to get my case to the family court. That's pretty significant. That is a huge loss of liberty and even someone accused of a criminal offence is generally granted bail and allowed to continue life much as they did before until the actual date of the trial.

I certainly understand the need for them in serious cases where the police can see that there has been violence committed (actual evidence of it), but it is simply not right or fair (and too easy to game the system with) if you just take people on their word and hand out an intervention order willy nilly. There really needs to be some test of evidence at the very first stage of application IMO.

And yes, that might mean that some applications are rejected and then someone winds up dead. That would be very sad and unfortunate, but I just don't agree that innocent people should be screwed just to cater for the most extreme cases. It would be pretty rare indeed for someone with no prior history of violence to suddenly kill their partner without some fairly obvious warning signs. Not saying it couldn't happen of course. But what other area of law can you get someone restrained without strong evidence of a crime or an imminent crime? That only happens in police states.

As for your suggestion to accept without admissions, I have already tried that approach (the kids are named, and I asked for them to be removed). It was rejected by my ex/the police. There is already an exception to the "no communication" clause in my order for dealings with "child arrangements", but it still requires my ex to be willing, which she appears to not be. She's already said all communication is to go through her lawyer. If she refuses to engage, it doesn't matter if I'm allowed to or not. But I suppose that applies regardless of whether there's an order in place or not.

 

[sammy01]

Yep look. Limited consequences. Might have been a bit flippant.

But the reality is contesting is just so bloody problematic. I reckon saving the $$ for family law because let's face it. Contesting it hasn't gotten you any closer to seeing the kids than accepting it.

As far as family law goes, I reckon family law magistrates yawn at AVO's. Criminal convictions? another story. But AVO's just another day at the office for family law magistrates. AND I reckon they know better than most that the legal system that they have dedicated their professional life to is getting abused and if the AVO is all the ex has and they're trying to use it as a trump card to prevent access, I reckon magistrates will see through that pretty quickly.

 

[GlassHalfFull]

Yeah, I'm not planning on spending significant money on the IVO. I'm going to use legal aid/duty lawyers wherever possible. I guess I'm just too proud to accept without admissions when I know it's all been a tactical ploy. But I do understand that it could be worse for me if I do get found to have committed violence (and let's face it, if having an argument with some yelling is enough to satisfy the magistrate, who would ever be innocent?). Seems to be that these are my two most likely outcomes:

Win intervention order case:
* Unlikely, given how low the bar is set on evidence
* Only a minor advantage in family law case if the judge is likely already largely ignoring the IVO anyway

Lose intervention order case:
* Likely, given my ex can claim she was scared (although I have text messages in the days/weeks prior to it showing that she was communicating with me like everything was normal and there were no threats of any kind), lie about the facts and make accusations with a scatter-gun approach that is very difficult to disprove with limited funds
* A finding of guilt is will probably a significant disadvantage in my family law case

So I do see your points that it's probably a lot easier to just consent and be done with it. But I've got this far, I want to at least see what happens at the next hearing and what the duty lawyer recommends.

 

[Rod]

If no Further and Better particulars have been received, you first request a dismissal due to lack of evidence, alternatively ask to have the evidence linked to the F&B request ruled inadmissible.

What would the police look like if this were to happen?

apparently the police never accept undertakings

Not true, though may well depend on which court you are in. I've seen the negotiations that take place outside a country courthouse and the police prosecutors were very pragmatic and would accept undertakings where it was merited. I was pleasantly surprised at their attitudes and response to some IVOs.

 

[GlassHalfFull]

If no Further and Better particulars have been received, you first request a dismissal due to lack of evidence, alternatively ask to have the evidence linked to the F&B request ruled inadmissible. What would the police look like if this were to happen?

I will ask the duty lawyer about this on the day. The ex still has a good month to actually submit F&B though (if indeed it is to be accepted up to the day of the hearing anyway) so I won't count a last minute submission out just yet. The magistrate requested it to be submitted pretty early prior to the directions hearing so although it is technically 'late', there's still a while to go before the hearing.

Not true, though may well depend on which court you are in. I've seen the negotiations that take place outside a country courthouse and the police prosecutors were very pragmatic and would accept undertakings where it was merited. I was pleasantly surprised at their attitudes and response to some IVOs.

Hmm, I have had two mentions hearings where I have asked for an undertaking and they have been rejected on both occasions. But each time, the family court proceedings inch forward and there are incremental updates there (and likewise, the magistrate's court seems to be interested in seeing how things play out there, hence the second mentions being scheduled even though I already said at my first mentions that I intended to contest it), so you never know if this might influence the police's thinking.

My understanding is that they primarily took direction from my ex though, and she wasn't interested in waiving any of the conditions. I would imagine though that if the police do start to feel the case is weak, they might be inclined to drop it even if my ex doesn't want to? No idea how it works from their end. It's in the Heidelberg Magistrate's Court if that makes any difference to you.

 

[Rod]

I have asked for an undertaking and they have been rejected on both occasions.

You personally, or the duty lawyer?

Did you have a legal aid duty lawyer or CLC duty lawyer? For matters interacting with a Family Court proceeding you want an experienced duty lawyer, not someone cutting their baby teeth in law, and someone who is used to dealing with the police prosecutors operating out of that courthouse. An experienced duty lawyer will know what they can and can't negotiate.

Sometimes though you may be unlucky and get a relief police prosecutor or someone interested more in their career/ego than true justice.

 

[GlassHalfFull]

You personally, or the duty lawyer?

Did you have a legal aid duty lawyer or CLC duty lawyer? For matters interacting with a Family Court proceeding you want an experienced duty lawyer, not someone cutting their baby teeth in law, and someone who is used to dealing with the police prosecutors operating out of that courthouse. An experienced duty lawyer will know what they can and can't negotiate.

Sometimes though you may be unlucky and get a relief police prosecutor or someone interested more in their career/ego than true justice.

The duty lawyer asked on my behalf, although I wasn't present when it happened so I have no idea how the conversation went. Apparently respondents are not allowed to negotiate directly with the police prosecutors? That's what I was told anyway. I certainly don't know how you could easily do it otherwise. I wouldn't even know who to approach and they seem to be dashing around or spending half their day in the courtroom.

I wouldn't actually know how to tell the difference between a legal aid and CLC duty lawyer? I thought they were all legal aid there on the day though? I wasn't given any option when I turned up and they asked if I wanted a duty lawyer. Would I have had to go to a CLC office in advance to 'book' a CLC duty lawyer? Do you recommend I do so in advance of the directions hearing?

I'm also still a bit confused about what exactly I need to do to prepare in advance of the directions hearing. Do I have to have all my evidence submitted that I would want to use at the contested hearing? The catch-22 position I'm in is that I've asked (I called them a while ago) if Victoria legal aid could fund a lawyer to represent me and they've told me that they cannot allocate any funding or a lawyer for a contested hearing until after the directions hearing, once I have a date booked. So how do I successfully navigate a directions hearing without any legal help? If I do need to have prepared something for the directions hearing, how could I possibly do that on the day with a duty lawyer and at best 15-20 minutes of their time?

 

[sammy01]

Text message in the weeks leading up to the event that show no threats means nothing. Just means you didn't uss your phone to threaten her. Big deal.
Mate I hope you're right and you win... But by your own admission it is unlikely... I think accept without admission looks better in family court than challenging and losing. You have said that yourself.

 

[Rod]

Access to kids is the problem in accepting the current IVO.

I thought they were all legal aid there on the day though?

Not necessarily. Call the West Heidelberg Community Legal Service and see how you go. Keep your discussions centred around how you can keep seeing your kids. Depending on your finances, a little like legal aid, they may not take you on but worth a shot.

Your matter does require a bit of finessing and legal knowledge to get a reasonable result.

And yes, police prosecutors don't like talking to respondents a lot of the time, hence the advantage of using an experienced duty lawyer. And the duty lawyer will more than likely not want you near the police prosecutor while they are talking.

It is frustrating as it is your future being decided by strangers, but it is likely to get you a better result as they can talk and negotiate freely without fear of you taking something the wrong way. Eg The duty lawyer might say something unflattering about you in order to extract a concession on another point in your favour. Either fully trust the duty lawyer, or DIY. Don't interfere in what they do (assuming you get one who has outgrown their baby teeth). It is a bit like watching a brickie build a wall and telling him how to do it. Not appreciated and likely counter-productive.

Hard to know how important the direction hearing will be. Suspect much will depend on whether the other side responds with F&B particulars.

 

[GlassHalfFull]

Call the West Heidelberg Community Legal Service and see how you go. Keep your discussions centred around how you can keep seeing your kids. Depending on your finances, a little like legal aid, they may not take you on but worth a shot.

Just to clarify, I am seeing my kids currently (due to a family court order that allows supervised visits currently, although I hope that supervision won't remain in place for too much longer). So in that sense, I suppose the restrictions on the intervention order are likely to be slowly whittled away regardless of whether I am successful in contesting the intervention order.

I know that in theory, an intervention order can override a family court order, but it seems that in practice, you would be given the opportunity to advise the magistrate of these orders so that he/she can work around them. Obviously in extreme cases, he/she might still decide that it's necessary to override them, but I doubt that would be necessary in my case, even if I was found 'guilty' in the contested hearing.

Depending on your finances, a little like legal aid, they may not take you on but worth a shot.

I am currently unemployed with little in the way of money or assets so in that sense I should be a prime candidate I would imagine. But if my situation is being handled in the family court primarily, they might not see that fighting the intervention order justifies the cost?

Hard to know how important the direction hearing will be. Suspect much will depend on whether the other side responds with F&B particulars.

Yes, which is why I want to at least wait until the directions hearing before making any decisions about contesting. But did you see my questions about what exactly I need to have prepared in advance of the directions hearing? My understanding is that the applicant needs to present their case (via an affidavit?) by the time of the directions hearing so that the respondent is able to decide whether to contest or not? Or is that not the case? Do they only have to submit evidence/affidavits before the contested hearing? What is the timeline? All the information I've been able to find online only talks about the absolute basics of the process: Mentions -> further mentions -> directions -> contested. Nothing about the details of what needs to be done to prepare. Usually just says seek legal advice for more information. Which is all well and good but not helpful if you're relying on duty lawyers who only really give you advice about the hearing on the day you see them. I don't want to turn up to the directions hearing with nothing prepared and then find out that I should have.