Luka and his wife Annabel had been together for thirty years but separated suddenly after Annabel applied for a domestic violence order. Luka attended court and received legal advice from a domestic violence duty lawyer. He disagreed with his ex-wife’s statements and wanted to challenge the final protection order.
Luka and Annabel’s matter was listed for hearing several months into the future, a common scenario where two people dispute a domestic violence matter. A contested hearing is stressful for the parties involved, can be expensive (if they engage a lawyer) and places pressure on the court system.
What happens at a domestic violence hearing?
If Luka (the respondent) opposes the making of an order, then the magistrate will make a date for a ‘hearing’ of the application. This will allow evidence to be heard from one or both of the parties and for cross-examination (asking questions of the witness) to occur. The magistrate will then decide whether the application satisfies the requirements of the Domestic and Family Violence Prevention Act. The court has to be satisfied that it was more probable than not that the acts alleged by the aggrieved (Annabel) had occurred (not that it was beyond reasonable doubt that they occurred).
Annabel may bring her own support person to court, but the support person is not permitted to speak for Annabel unless she has made the application as an authorised person. Annabel may complete a safety form if she requires court staff to provide security measures (e.g. a safe room) when she attends or leaves court.
The court must also consider whether to make an aggrieved, a child or a relative/associate of the aggrieved ‘a protected person’ in the proceedings. Being a protected person allows them to give evidence in a way that is not as confronting as being in a court room and facing the person they allege has caused them harm. Examples of this may be:
- allowing them to give evidence outside the court room and via audio visual link either live or via replay
- placing a screen or one-way glass so that the aggrieved cannot see the respondent
- making the respondent stay in another room while the aggrieved gives evidence.
The court can also order that Luka, as an unrepresented respondent, cannot directly cross-examine Annabel if she is deemed to be a protected witness (s 151 DFVP Act).
The court is closed to the public. There are restrictions against publishing information about the case to the public.
After sleeping on it, Luka changed his mind and decided to consent without admissions to a final protection order. Luka thought that he could just wait for the hearing date and consent at that time. But by then Annabel would have felt the stress of preparing for a hearing and paid legal fees unnecessarily.
Luka is from a non-English speaking background and has difficulty reading and writing English. Caxton’s lawyer prepared emails for Luka to send to Annabel and the court. The hearing was vacated and consent orders were made. The court listed a matter on that date for other people in need and Luka and Annabel saved legal fees and avoided the stress of preparing for and appearing at a hearing.