20 Aug The stages of an Intervention Order (Contesting the matter)
Contesting the Order
If the Respondent does not agree to the Intervention Order being made, and the parties do not agree on an undertaking, then the Respondent can contest the Intervention Order application. If the Respondent contests the Intervention Order, then the matter will move to the next stage – a Directions Hearing.
If the applicant does not withdraw their application, and the Respondent does not consent to the application, then the matter will be listed at the court for a Directions Hearing. A Directions Hearing is where the court will want to get an idea about what exactly is in dispute, and whether the matter can settle. If it does not look like it will settle, the Magistrate will want to know how many witnesses each party is calling, and how long a Defended Hearing would take. If the matter does not settle at the Directions Hearing, it will be listed for a Contested Hearing.
A Contested Hearing is the last stage of an Intervention Order, and often the first time the Respondent is able to produce their own evidence. At a Contested Hearing, a Magistrate will listen to both sides. The Protected Person and the Respondent can both call witnesses, if necessary, or produce other evidence to prove that the allegations of family violence did or did not occur. At the end of the Contested Hearing, the Magistrate will decide whether or not a final Intervention Order should be made, what conditions should be included, and how long it should last for.
As Intervention Orders are civil in nature, the ‘standard of proof’ (i.e. evidence needed) is lower than in criminal matters. The Magistrate does not need to believe ‘beyond a reasonable doubt’ that the violence occurred – only on a ‘balance of probabilities’ (i.e. that it is more likely than not the violence occurred.) If the Magistrate believes that the violence probably occurred, and it is likely to occur again, they must make a final Intervention Order. Until the Magistrate makes their final decision, the Respondent can still consent to the Intervention Order. Many Intervention Orders settle during the Defended Hearing, particularly if strong evidence is given by either party.