Successful Contested Hearing

Court:

Magistrates’ Court of Victoria at Sunshine

Facts:

This matter involves the Applicant making Personal Safety Intervention Order (“IVO”) applications, listing her children as Protected Persons, against the Respondent Wife and Respondent Husband. Our clients in this proceeding were the Respondent Wife and Respondent Husband.

The relationship between the parties are that they are parents of children attending the same school.

There is a history of conflict between the parties, and it continues to be ongoing. There has been a history of Applications for Interim IVOs by both parties. The Respondent Wife and Husband previously successfully obtained an Interim IVO against the Applicant. Subsequently, this Interim IVO has since been withdrawn pursuant to mutual undertakings between the Applicant and Respondents. Following this, the Applicant had initiated new legal proceedings whereby she has applied for a Personal Safety IVO against the Respondents.

The Respondents have since requested for the original IVO to be reinstated as they believed the Applicant was not adhering to the rules of the undertaking. The Respondents viewed the Applicant and her children(s) behaviour as a breach of the undertaking and felt their children were no longer safe.

The Applicant alleged that the Respondents have made inappropriate gestures, used inappropriate language, and stalked the Applicant and her children. This has caused the Applicant and her children to be fearful. The Applicant has made numerous requests for an Interim IVO to be placed against the Respondents, yet the requests were not granted as there was no basis for the Application. The Applicant has continued to request a final Court Order for the IVO.

Proceedings and Process of Cross-Examination:

The matter was listed for a Hearing. At such Hearing, the Applicant’s case was proceeded with first. She gave evidence in the witness box. The evidence given by the Applicant provided accounts of alleged inappropriate behaviour conducted by the Respondents, and stalking provided through documentation. However, the Applicant often relied on third-party information and the documentation provided was a breach of the Respondents privacy.

Next, our Principal Lawyer cross-examined the Applicant thoroughly; going for approximately two hours. One of the initial questions asked of her was in relation to inconsistencies found within her further and better particulars. Within the first 10 minutes of the cross-examination, the Applicant admitted that her further and better particulars may not be entirely correct. The cross-examination intended to cast doubt on the legitimacy of the Applicant’s assertions. Ultimately the cross-examination proved instrumental in shaping the judicial determination.

Our Principal Lawyer then submitted to the Court and put to the Applicant, that her evidence could not be relied upon, as she had issues of credit and issues within her further and better particulars.

The Applicant had submitted documents in her further and better particulars that were obtained by her Husband. It was submitted to the Court that these documents do not support that the Applicant was subject to any family violence or prohibited behaviour. It was further noted to the Court that it was solely the Applicant that was making the Application, not her Husband.

Our clients, the Respondents, then gave evidence. While providing such evidence, we sought to adduce that the Respondents were not the primary agitators in this situation, but rather were both subjected to prohibited behaviour performed by the Applicant and the Applicant’s Husband. In turn, causing severe distress and anxiety to the Respondents and their family. 

It was submitted that the Respondent Husband was not making an IVO Application against the Applicant, nor was he to be found to have committed any prohibited behaviour against the Applicant.

At the conclusion of the matter, it was submitted to the Court that they strike out the Applications made by the Applicant on the basis that the Applications had no merit and did not demonstrate that any prohibited behaviour had occurred, nor did they demonstrate that prohibited behaviour was likely to occur in future.

Our Principal Lawyer then made an Application, that the Respondent Husband should have his costs paid. This is because the Respondent Husband did not have an Application against the Applicant, and otherwise did not need to be present for these proceedings. As a result, we sought there be a Cost Order made, given that the Application made against him was made in bad faith and without merit.

Final Outcome:

Following extensive evidence being provided by both parties, the Judge made determinations regarding the three Applications before the court:

1. Personal Safety IVO Application against the Respondent Husband: The Judge found no evidence to support the Applicant’s allegations against the Respondent Father. The Applicant’s evidence indicated a lack of involvement by the Respondent Husband. Therefore, the Judge refused to grant a Final Order against the Respondent Husband. Additionally, an Order was made for the Applicant to pay our client the amount of $4,100 by way of a Costs Order.

2. Personal Safety IVO Application against the Respondent Wife: Despite the Applicant’s claims, the Judge concluded that there was insufficient evidence to support the Applicant’s Application against the Respondent Wife. Rather, much of the evidence presented suggested stalking behaviour committed by the Applicant, raising doubts about her credibility/involvement. Consequently, the Judge refused to grant a Final Order against the Respondent Wife.

3. Respondent Wife reinstatement of Personal Safety IVO Application against the Applicant: The Judge found sufficient evidence to support the Respondent Wife’s Application against the Applicant. The evidence indicated a course of conduct by the Applicant involving stalking and causing distress to the Respondent Wife and children. Therefore, the Judge proposed to reinstate a Final Order in favour of the Respondent Wife and her children.

The Court made Orders that the Applicant must not:

1. Stalk the protected person(s)

• A person stalks another person if he/she engages in a course of conduct with the intention of causing physical or mental harm to that person including self-harm or arouses apprehension or fear in that person for his or her own safety or that of any other person.

2. Commit prohibited behaviour towards the protected person(s).

• Prohibited behaviour is assault, sexual assault, harassment, property damage or interference, or making a serious threat.

3. Attempt to locate, follow the protected person(s) or keeping them under surveillance.

4. Publish on the internet, by email or other electronic communication any material about the protected person(s).

5. Contact or communicate with a protected person by any means.

6. Approach or remain within 5 metres of a protected person.

7. Go to or remain within 200 metres of or any other place where a protected person lives.

8. Get another person to do anything the respondent must not do under this order.

9. The Applicant must bear the costs of her own Application and must pay 50% of the cost of the Application against the Respondent Husband being the sum of $4,150.00, due to lack of merit of that Application.

This was the ideal outcome for our clients. The Respondent Husband was able to be compensated for his unnecessary involvement in the proceedings. The Respondent Wife was able to obtain a reinstatement of the Personal Safety IVO for an extended period of time due to the history between parties.