After the First Hearing
Before the next hearing date, the court may give a timetable with steps for filing documents and other evidence. You should make sure you follow what you need to do in the time table.
As part of this you are likely to be required to file an affidavit by yourself and any other witnesses. An affidavit is a formal statement which needs to be sworn or affirmed in front of a Justice of the Peace, Solicitor or Commissioner for Declarations (Form DV5).
Subpoenas
A subpoena is a direction by the court making a person (this may be someone like a doctor or hospital manager) give evidence and/or bring along documents, medical records etc. To get a subpoena issued, take a DV22A Request for Subpoena together with the subpoena you want issued (use a DV22 Subpoena form) to the court registry. You may need a court date to have the subpoena issued. Once issued, you will then need to serve the subpoena on the person you want to give evidence or bring along documents or records etc to court. The court may direct you as to how to serve the subpoena, for example sending it by post. The person “subpoenaed” will then provide the documents or records listed in the subpoena to the court registry. If it is very expensive for this person to provide these documents etc, the court may order you to pay their expenses.
You will then need to make an application (if you wish to apply in writing you can use an Application to Inspect and Copy Subpoenaed Document) for an order to inspect and copy the subpoenaed documents. If an order is made, you may only inspect or copy the documents in the registry. You may need to make an appointment to inspect and copy and you should contact the registry to arrange this.
Evidence
The Rules explain how a court may receive evidence, including that you may rely on evidence or an affidavit used in an earlier proceeding (including an earlier criminal proceeding or child protection proceeding), if this is relevant to the proceeding and the court gives its permission.
If you are filing evidence in the form of a plan, photograph, video or audio recording or model (this is called a media exhibit), you must give notice, at least 7 days before the hearing, to all other parties that the exhibit has been filed; unless there is an order that the exhibit be placed in a sealed container (e.g. an envelope). You may use the form DV30 Notice of Filing of Media Exhibit. When filing a media exhibit you must ensure it is in a format capable of being played or viewed in the court. If you are the other party, you may then see the media exhibit at the registry before the hearing. You should contact the registry to make an appointment time for inspection of the media exhibit.
What happens at the next hearing?
Courts hearing applications are closed—no members of the public will be allowed into the courtroom. You can bring someone else with you for support but it will be up to the magistrate if this person is allowed in the courtroom.
If the magistrate makes a DVO, both you and the respondent will be given a copy.
Is the magistrate’s decision final?
Either you or the respondent can appeal the magistrate’s decision if either of you disagree with it. You must lodge your appeal within 28 days of the magistrate’s decision.
You should get legal advice if you want to appeal. Appeals must be lodged at the District Court.
Is a DVO a criminal offence?
No. Taking out a DVO does not give the respondent a criminal record.
However, it is a criminal offence to disobey a DVO.
What should I do if the respondent disobeys the order?
Tell the police. You should report any breach, so always keep the order with you in case you need to show it to the police.
Can the conditions be changed if the situation changes?
Yes. If circumstances change, you can apply to have the order varied.
An Application to Vary a Domestic Violence Order (Form DV4) must be filed at a Magistrates Court registry.
How do I obtain a copy of a document from the court file?
Make a written request – you may use the DV34 Request to Inspect and/or Copy Document form.
Withdrawing an application
If you applied for a domestic violence order or a variation of a domestic violence order, you may withdraw the application. You can do this by telling the magistrate in court, or in writing to the clerk of the court. (You may use the DV27 Application to Withdraw form.) The court may decide an application to withdraw without the parties appearing, unless the court orders otherwise. If the clerk of the court receives an application to withdraw, the clerk must send a copy to the nearby police officer for service on the other parties in the proceeding.