When a matter is defended

Contested hearings

If you do not consent to an order, the application is contested and the Local Court lists it for hearing. The court then decides, on the evidence, whether the grounds for an order are made out.

General information, not legal advice. This page sets out how the law generally applies. It does not take account of your circumstances, and you should get advice about your own situation before acting on it. The official sources this page is written from are listed on it; where they differ from anything here, they are the authority.

Who this page is for

You want to defend the application, or you are deciding whether to

Some applications are worth defending. An application said to have been made to gain an advantage in a family law dispute. An application resting on a single incident you say did not happen as described. An application where the conditions sought would cost you your work, your home or your relationship with your children, and nothing less restrictive has been considered. Whether a hearing is the right course in your matter is a question for advice on your own facts.

Not every matter is improved by contesting it, and being innocent is not by itself the test. The questions are what can be proved, what a hearing would put you and others through, and what you would gain that could not be achieved by negotiating the conditions instead. A hearing can also end in a final order on broader terms than were offered, which is worth weighing before the decision is made.

Deciding well takes the material. An assessment made before the statements are served is a provisional one. Early on, the useful work is preserving evidence, meeting the directions the court makes, and making sure nothing happens in the meantime that adds to the applicant’s case.

Whatever you decide, keep complying with every condition you are already under. Contravening a condition while the matter is waiting to be heard may lead to a separate criminal charge, and it is material the applicant can point to in the proceedings you are defending. See alleged breach.

How we help

What the work actually is

An honest assessment of the application

What is alleged, what supports it, what contradicts it, and what a court is likely to do with it. You get that answer even when it is not the one you want, and you get it before the costs of a hearing are incurred.

Meeting the court's directions

Contested matters run on timetables for filing and serving statements. Missing a date narrows what you can rely on at the hearing, so the timetable is treated as part of the case rather than as administration.

Preparing your evidence

Statements that say what happened in your own words, and the material that supports them: messages, call records, photographs, timesheets, travel records, and independent witnesses. Records made at the time are useful because they fix dates and places; what weight any evidence carries is for the court.

Testing the applicant's evidence

Cross-examination that goes to what can actually be established, conducted properly. In domestic violence proceedings there are rules about how some witnesses give evidence and how they may be questioned, and those rules are respected.

Negotiating while the matter is listed

A contested matter can still resolve before the hearing. Narrower conditions, a shorter order, or a withdrawal are among the outcomes that can follow once the evidence has been prepared and served. None of them is guaranteed.

Running the hearing, and what follows it

Appearing on the day, making submissions on whether the grounds are made out and, if an order is to be made, on what its conditions should be. After the decision, advice about the order’s terms and about any right of appeal.

Questions

Questions people ask first

What does the applicant have to prove?

That the grounds the Act requires for the kind of order sought are made out, on the balance of probabilities. It is not enough that an allegation has been made or that the parties do not get along. What the Act requires differs between an apprehended domestic violence order and an apprehended personal violence order, so the first step is identifying which is sought.

Will I have to give evidence?

If you contest the application and you want the court to accept your version, expect to give evidence and be cross-examined. That is a reason to prepare properly, and it is also part of the cost of contesting that people do not always weigh before deciding.

How long does it take?

How long depends on the court’s list and on your matter. A contested matter is adjourned for statements to be prepared and served, and then listed for hearing. Ask at the first mention what the likely timetable is, and plan around the conditions continuing in the meantime.

Can I be ordered to pay the other side's costs?

Costs in these proceedings are dealt with by the Act itself, in sections 99 and 99A, rather than by the rule that applies in ordinary civil litigation, and what is available differs according to who made the application. An order is possible in some circumstances and is not a routine consequence of losing. The Judicial Commission’s Local Court Bench Book sets out how those provisions are applied. Ask about your own matter before a hearing is sought.

The police applied but the protected person does not support it.

The application is still the police application. It can continue even where the protected person would prefer it did not, and police may call them as a witness. Do not treat their view as the end of the matter, and do not contact them about it if a condition prohibits contact.

What if the allegations are also criminal charges?

Then the order of events matters a great deal. Anything you say or file in the AVO proceedings exists while the criminal matter is on foot. The two should be planned together from the start. See related criminal charges.

If I win, is that the end of it?

If the application is dismissed, there is no final order, and any interim order comes to an end according to its terms. A fresh application can still be made later if new circumstances arise. If an order is made instead, it can be varied or revoked later on application. See revoking an order.

What to bring

Material that existed before the argument started is what you will be asked for. Bring what you have, including the parts that do not help you.

The application notice, the grounds relied on, and every page of any interim order.
Every statement served on you, and the date it was served.
The directions the court has made, and the dates in them.
Messages, call logs, emails and social media between you and the other party, complete rather than selected.
Photographs, medical records, receipts, timesheets or travel records that fix a date or a place.
The names of anyone who saw or heard what is alleged, and what they would say.
Any criminal charge arising out of the same events, and its court date.
Any family law proceedings, order or parenting plan involving the same people.