If you have received a summons for a family violence intervention order hearing, you may be wondering how a Magistrate reaches their decisions as to whether family violence has been committed.1
The Burden and Standard of Proof
If an intervention order (IVO) is made against you, you are not convicted of a crime and you will not receive a criminal record. An IVO is simply a court order requiring you to follow certain conditions. However, if you fail to follow these conditions, you may be convicted of an offence.
As the consequences of an IVO are less serious than a criminal conviction, the ‘standard of proof’ – that is, the degree to which a Magistrate must be satisfied that allegations are proven – is less stringent. In an IVO hearing, allegations need to be proven ‘on the balance of probabilities’.
A Magistrate will make a final intervention order if satisfied on the balance of probabilities that:
- The respondent (alleged perpetrator) has committed family violence against the affected family member; and
- The respondent (alleged perpetrator) is likely to continue to commit family violence against the affected family member or is likely to commit family violence against the affected family member again.
The burden of proof – that is, who is responsible for proving the allegations – is held by the person applying for the order, either Victoria Police or the alleged victim. An order may also be made if all parties consent to the order being made.
Forms of Evidence
An IVO hearing is usually run in the same way as a contested hearing, with witnesses being called to give testimony about allegations of family violence.
This usually includes the alleged victim, the alleged perpetrator and anybody who may have witnessed the violence.
Witnesses will be questioned by lawyers for both sides, so that each party can test the strength of the evidence of the opposing side.
Expert witnesses, such as doctors or psychologists, may also be called to give evidence.
Witness testimony can often be supplemented by photos, video or audio recordings as well as extracts of text messages, emails or other correspondence which support or do not support accounts of violence.
Whilst this is the usual course of events, the Magistrate during an IVO hearing has broad powers to exclude or to limit the use of evidence if satisfied it is just and equitable to do so; or the probative value (“usefulness”) of the evidence is substantially outweighed by the danger that the evidence may be unfairly prejudicial or misleading or confusing.
After hearing all the evidence, a Magistrate at an IVO hearing will make a decision as to whether to make an intervention order.
The Family Violence Protection Amendment Act 2017 (Vic) recently amended the law so that if a child has been subject to family violence, the court no longer has to predict that the child will be subject to family violence again when making an order.
Moreover, the amendment now allows children and cognitively impaired witnesses to give evidence via a VARE – which is a visual/audio recording of testimony rather than requiring the witness to appear in court.
If you have an upcoming hearing related to a family violence intervention order, our specialist family violence lawyers at Doogue + George can help. Please get in touch.