Intervention Orders are complicated, and often affect people who have never been to court before. It's a jurisdiction that moves fast, and those unfamiliar with the court process can easily wind up with an order that affects their life for years to come. The most common questions that we are asked about Intervention Orders ('IVOs') are:
- Can I appeal an Intervention Order?
- Can I change the conditions of a Final Intervention Order?
The short answer to both is 'yes'.
Any 'party' to an IVO can appeal the order,1 though the approach may be different depending on whether you are the 'Applicant', an 'Affected Family Member' ('AFM') or the 'Respondent' (the person who is bound by the conditions of the order). This article will explain the process of appealing an order as a Respondent.
Even if you decide not to appeal an IVO, you may apply to change the conditions of the IVO such as the duration, the people protected by the order or aspects of the contact conditions, such as allowing contact with the AFM. Keep in mind that you cannot appeal an Interim Intervention Order or the refusal by a Magistrate to impose an Interim IVO.2
The grounds for an appeal might include:
- The Respondent did not attend their Magistrates' Court hearing (sometimes this is because they were not aware of it);
- They disagree with the decision of the Magistrate in the Magistrates' Court and seek for a decision from a Judge of the County Court.
Rehearing
If you were not aware of the application for the Intervention Order as the paperwork was not served on you or brought to your attention, then you should seek a 'rehearing'.3 This is different to an 'appeal' as you are simply seeking to have the matter reheard by a Magistrate, not appealing an Intervention Order. There are time limits to applying for a rehearing. Each case will be different and it's best that you get specific advice as soon as you become aware of a Final Intervention Order.
Appeal an Intervention Order to the County Court
If an IVO was finalised in the Magistrates' Court and you seek to appeal it, then you can apply to the County Court to hear your appeal. If you disagree with the imposition of the IVO in its entirety, then it's important that you are clear about the reasons as to why there should not be an IVO in place and have evidence to support that.
Prior to the decision of Justice Dixon in AAA v County Court of Victoria & Ors4 (AAA), an appeal of an intervention order from the Magistrates' Court to the County Court was heard 'de novo'; in other words, it was reheard by the County Court judge as if it were the original application. However, AAA held that the County Court did not have the jurisdiction to re-hear an intervention order appeal as a new hearing. Now, an appellant will first need to identify a legal, factual or discretionary error made by the Magistrate.
As the Magistrates' Court do not provide written reasons, you will need to apply for a copy of the hearing recording or transcript as soon as possible and identify a specific error before initiating an appeal.
Preparing the application incorrectly can carry financial risks, such as an adverse costs order being made. This means that the appealing party would be required to pay the other party's legal costs, particularly if the court considers that there was no merit to the appeal.
Time Limits
If you are intending to appeal the decision of the Magistrate, then you must lodge (notify the County Court of your application to appeal the IVO) within 30 days of the Magistrates' Court decision. If you miss this deadline, there is no possibility to extend the time to appeal.5
Stay of Magistrates' Court Final IVO
Once you make your application, it is not uncommon to take up to a year to complete the preliminary stages and for you to reach a final hearing. The final IVO does not cease to be in effect during this period and the Magistrates' decision usually remains.6 You can apply to the Magistrate who made the Final IVO for either a stay of the order itself, or of a certain condition (which means halting its operation) until the appeal has been determined.
Directions Hearings
If your appeal is in Melbourne, you will need to attend a 'directions hearing' when orders will be made giving parties time to file and serve appeal paperwork. There is then a further directions hearing before a Judge who will ensure that all paperwork has been completed. The court will need to know if you are intending to call witnesses, and whether you will be legally represented, as you are unable to cross-examine the AFM yourself.
Preliminary Hearing
If everything is going to plan, the court will list your matter for a preliminary hearing. This is your opportunity to persuade the judge that an error was made by the magistrate who decided the IVO application. It must either be a legal, factual or discretionary error. The court will either decide on this straight away, or you will have to come back to court to get a decision.
Appeal Hearing
If the court agrees that an error was made, you will then get to argue why there should not be an intervention order or that there should be different conditions. The court will consider documents that formed part of the initial hearing and any witnesses. If you want to introduce new material, you will usually require permission from the court. The judge will then decide the appeal. The judge can either:
- Confirm the Magistrates' Court Final IVO; or
- Set aside the Magistrates' Court Final IVO.7
If the Judge confirms it, this means the original decision remains in effect. If the Judge decides to set it aside, this means that they will vary it and may either:
- Completely remove the IVO; or
- Vary the conditions on the IVO (such as the length, names of AFM and certain contact conditions).
Appealing an intevention order is not straightforward. It is a lengthy process and carries both risks and potential rewards. If you are considering your options, you need to move fast to comply with filing deadlines.
Footnotes
1 Family Violence Protection Act 2008
s 114 (FVPA), Personal Safety Intervention Order Act 2010
s 91 (PSIOA).
2 FVPA s 114(2)(c), PSIOA s 91(2)(b).
3 FVPA s 122; PSIOA s 99.
4 AAA v County Court of Victoria & Ors
[2023] VSC 13.
5 Family Violence Protection Act 2008, s 116;
Personal Safety Intervention Orders Act 2010, s 93;
Summers v McKenzie [2017] VCC 2015, 29; Carroll (a
pseudonym) v Browne (a pseudonym) & County Court of
Victoria [2018] VSC 253, 16.
6 FVPA s 117, PSIOA s 94.
7 FVPA Section 119, PSIOA s 96.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.