04 Apr Intervention orders – what to do if you are served with one
Intervention Orders – What to do if you are served with one
Breaching an intervention order is a criminal offence, with a maximum penalty of 2 years imprisonment or a fine up to $24,000, or both
Many intervention order matters will arise out of a related assault (or other) charge, a family law matter or ongoing neighbour dispute.
Complaints for an intervention order can and often do include a history of alleged previous incidents and assaults and/or a course of conduct over a long period, particularly in circumstances where a marriage or long relationship has broken down.
At the first mention date, this is the time to get in and commence negotiations to see if the matter can resolved, without a hearing. Usually the first date will be for this purpose and if it does not resolve, then a fully contested hearing date will be fixed for a later date. But you will need to check your paper work thoroughly to make sure that it is a mention date and not the fully contested hearing date. Most Magistrates’ Courts have services provided by local community legal centres for unrepresented parties. You will need to find out whether the other side is being represented by the police, a legal centre, duty service at the court, private lawyer or just by themselves. The sooner you can speak to someone from the other side, the sooner you can determine how the matter is likely to proceed. If there is a current interim order against you then you will not be able to speak directly to the other party and may need to make enquires with the court or police to find out who is representing them. Alternatively you may engage a lawyer to communicate to the other party on your behalf. Do not however rely on a verbal communication only if you are speaking with the other side’s representative; it may be prudent to have something in writing if you are promised an adjournment or some other agreed course of action or offer to settle.
There are often related family law proceedings to be considered in relation to an intervention order and, if you are in such a position, you should get advice from an experienced family lawyer as to any implications of an intervention order being made or the matter proceeding to a hearing. It could well affect your rights in relation to spending time with your children or living with them.
If the dispute is between neighbours, or similar non-family related parties, most Magistrates’ Courts have a mediation service available. Most magistrates will strongly suggest that the parties avail themselves of this service before a matter is booked in for a contested hearing. Make sure you find out if such a service is available at the court where your matter is listed and that you have canvassed mediation with your client before attending at court. The reality usually is that if the matter can settle without the need for a hearing it could well be in your interests to engage in whatever mediation and negotiation is available.
If you are agreeable to stay away from the other party and are happy to give the court an undertaking (promise) to do so, this could be a way to resolve the matter without an actual intervention order being in place. The undertaking can be given whilst at the same time denying the allegations so there are no actual findings of fact made by the magistrate. The benefits and detriments of providing such an undertaking should be first discussed with a lawyer experienced in this jurisdiction, particularly when family law rights are also an issue.
Costs are generally borne by each respective party and costs orders are difficult to obtain against the other party if you successfully defend intervention order proceedings even if you have legal costs. However in some cases where it is clear to the magistrate that the other party has brought the proceedings without any grounds to do so/ solely to advance another agenda there may be the possibility of a costs order being against that party being considered but you should consult a lawyer about making such application.
Intervention Orders are a serious matter given that they can be enforced by police and also because the proven breach of them gives rise to a criminal offence.
Maria Rigoli is the Principal of Rigoli Lawyers and author of 7 Tips to Resolve your Legal Problem without Stress.
You can download your free copy at www.rigolilawyers.com.au