Dependent on availability, a Court Support Worker will usher the concerned parties into the Court room where the Aggrieved sits beside the Police Prosecutor and the Respondent sits at the opposite end of the bench.
The Magistrate usually confirms the names of each party and often the Police Prosecutor presents the matter to the Court where the Magistrate may continue by asking questions relating to the application and/or events.
The Magistrate regularly clarifies with both parties the law in terms of the Domestic and Family Violence Act 1989 and may explain the extent of her/his powers including the decision regarding the application.
The printed document of the Magistrate's decision can be obtained on-site by waiting a few minutes at the Courthouse, delivered by police or via Australia Post.
Please talk to our Court Support staff or contact the IWCADV with any questions or follow up issues you may have on 3816 3000.
THE COURT PROCESS
You should arrive 30 min. early so that you can talk to the police prosecutor or court support worker about your case. If you do not go to court at the required time your application will probably be dismissed. When your name is called out at the mention date, you go into the courtroom. If you are the aggrieved spouse, you sit to the right of the police prosecutor or your lawyer. If you are the respondent spouse, you sit on the left hand side of the police prosecutor/lawyer, at the other end of the table. The magistrate quickly reads the application. What happens next depends on whether the respondent spouse turns up at court and whether he/she has been served.
If the respondent spouse has been served, and he/she turns up at court, he/she will be asked if they want to consent to an order being made or to contest the order. If the respondent consents to the order, the order is made that day and generally lasts for two years. If the respondent contests the order, another court date is set for a hearing. If this happens, it is a good idea for the aggrieved spouse to apply for legal aid for a solicitor, or pay for a private solicitor if they have the money (unless the application was made by the police). This is because a hearing is a more lengthy and detailed consideration of the application, and a lawyer can help to ensure that your arguments are heard properly. If you cannot get legal aid or afford a solicitor, contact Police Prosecutions as soon as possible. Ask to speak to the Police Prosecutor who will be at Court on the date of your hearing, to help prepare your case. For further information regarding preparing for a hearing, contact Women's Legal Service on 33920670 or Legal Aid on 1300 65 11 88.
If the respondent spouse has been served and does not turn up at court, the Magistrate has the power to make a protection order anyway. This is because the respondent knew they were supposed to be there and didn't turn up. Sometimes, however, the Magistrate may decide to give the respondent one more chance to turn up by adjourning the matter to a later date.
If the respondent spouse has not yet been served with a copy of the protection order application, the court date will be adjourned to a later date to allow more time for the police to give the respondent a copy of the application. This is because the respondent has to be given the opportunity to know that a protection order application has been made and to appear in court. The magistrate may grant a temporary order until the matter returns to court if it is believed that your person or property is at risk. If you believe this is necessary, it is important that you tell the Police Prosecutor.
WHAT THE RESPONDENT MIGHT DO
Your spouse should come to court for the first appearance and has a number of options when he/she receives the application and summons. Your spouse can:- Consent to an order being made.
- Ask for an adjournment of the proceedings in order to obtain legal advice.
- Oppose the orders you are asking for
- Not bother to attend court, or do anything. [1] [2]
If your spouse agrees to the orders you want, an order can be made by consent when your application goes before the Magistrate. The order will remain in force for up to two years, or longer if there are special reasons.
If your spouse asks to adjourn your application, the Magistrate normally adjourns it for a period of two to three weeks to allow your spouse time to get legal advice before the next court appearance. Ask the Magistrate to issue a Temporary Protection Order to protect you until the next hearing. If your spouse has a solicitor and the police does not represent you, you should get legal advice.
If your spouse opposes your application there will be a contested hearing at a later date. If the matter goes to the hearing you should get legal representation either by the police prosecutor, a private solicitor or a legal aid solicitor.
If your spouse does not come to court at the required time the magistrate:- May adjourn the hearing, or
- Make the orders you asked for in your application
If your spouse does not appear in court, the Magistrate can only make the orders you asked for if the police show proof that the documents were delivered to your spouse. If the Magistrate thinks the orders you want are not appropriate, other orders may be made.
THE CONTESTED HEARING
- Ask the police prosecutor to represent you if you cannot afford a lawyer and did not get legal aid.
- Bring with you any witnesses who saw or heard incidents of domestic violence. The hearing will be closed, which means the public are not allowed to watch.
- Ask your witnesses to write down what they saw or heard as soon as possible after the events. They should bring these notes with them to court.
- Also bring any other supporting evidence to the final hearing. Photographs of your injuries and medical reports from the doctor who treated you will help the Magistrate decide whether or not to make the Protection Order.
THE PROCEDURE FOR THE FINAL HEARING
- From the witness box, you tell the magistrate your version of the events which made you apply for an order. You should have included most of the details in your application so you will only need to explain any matters that the Magistrate would like clarified.
- After you have given evidence, you will be told to call your witnesses into court. You may ask them to tell the Magistrate what they saw or heard.
- Your spouse will then present his/her case in the same way.
- When you are giving evidence, your spouse or spouse's lawyer will be able to ask you questions about the evidence you are giving and when your spouse is giving evidence you or your lawyer will be able to do the same. This is called cross-examination. Witnesses will also be cross-examined.
MAKING THE ORDER WORK
Only the police can deal with your spouse for breaching the Order. Write down details of how your spouse broke the Order at the time or as soon as possible afterwards to use in court.
If your spouse is found guilty of breaking the Order, the court can make your spouse do community service, be put on a Good Behaviour Bond, be fined up to $3,000, or even sent to prison for up to twelve months. Your spouse will only go to prison for serious or repeated breaching (breaking of) the Order.
If you think the police have not done their duty you should speak to the police officer-in-charge at the station you have been dealing with.
You must also obey the Protection Order. If a condition of the Order is "no contactÃÂÂÂ you cannot contact your spouse.
Usually the Protection Order will not last longer than two years unless there are special reasons. During this time you can cancel the order or you may wish to change the terms of the Order. To do this you will need to fill out an Application to Revoke or Vary a Domestic Violence Order from a Magistrates Court.
You can have a Protection Order (with four standard conditions) and still live with your partner.
If you and your partner decide to live together again and you have a Protection Order with extra conditions you should have these conditions changed to four standard conditions as you may be breaching the Order just by being near each other. [3]
Your Protection Order applies in other States if you get it registered there.
You may view this information online in document form here. |
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