Family Violence Lawyers in Melbourne: Contesting Family Violence Charges at a Defended Hearing

Many family violence criminal charges in Victoria are resolved by plea of guilty or by diversion, but a significant number proceed to a defended hearing in the Magistrates Court or to a contested trial in the County Court. Contesting a family violence charge at a defended hearing requires specific preparation and a clear understanding of the evidentiary framework that governs these matters in Victoria. This article explains what is involved in contesting a family violence charge and what a family violence lawyer in Melbourne does to prepare for and conduct that hearing.

This is general information only and does not constitute legal advice.

Understanding the Defended Hearing

What family violence charges are typically contested at a defended hearing?

Family violence charges most commonly contested at a defended hearing in the Magistrates Court include assault and assault family member charges under the Crimes Act 1958 (Vic), stalking charges, charges of making threats, and breach of a family violence intervention order under the Family Violence Protection Act 2008 (Vic). More serious charges including aggravated assault, recklessly causing injury, and intentionally causing injury proceed to the County Court if contested. The nature of the charge determines the court in which the defended hearing takes place and the evidentiary framework that applies.

What standard of proof applies in a contested family violence hearing?

A family violence criminal charge is a criminal proceeding and must be proved by the prosecution beyond reasonable doubt. This is the highest standard of proof in the legal system. The defence does not need to prove that the accused is innocent: the prosecution must prove that they are guilty. A family violence lawyer in Melbourne contesting a charge focuses on whether the prosecution can discharge that burden on the evidence available, not on proving an alternative version of events, though presenting the accused's account is often an important part of the defence case.

How does the family violence legislative framework affect the defended hearing?

The Family Violence Protection Act 2008 (Vic) and the Evidence Act 2008 (Vic) contain provisions that specifically affect the conduct of family violence criminal proceedings. These include provisions about the use of a complainant's prior statements in evidence, provisions affecting how a family violence complainant gives evidence, and provisions that may allow a complainant's out-of-court statements to be admitted in certain circumstances. A family violence lawyer in Melbourne needs to be familiar with these provisions because they shape what evidence the prosecution can rely on and what avenues are available for challenging that evidence at the defended hearing.

Preparing for the Defended Hearing

How does a family violence lawyer analyse the prosecution brief?

The prosecution brief in a family violence matter typically contains the complainant's statement, any police attendance notes, photographs of injuries or the scene, medical evidence where injuries are alleged, and any electronic communications between the parties. A family violence lawyer in Melbourne analyses each piece of evidence in the brief to identify what the prosecution can prove beyond reasonable doubt, what evidence is contested, and what gaps exist in the prosecution case. The analysis drives the approach to the defended hearing, including which witnesses to cross-examine and what the cross-examination needs to establish.

What role do text messages and electronic communications play?

Electronic communications between the parties, including text messages, social media messages, and emails, are frequently among the most significant evidence in a contested family violence matter. Communications that are inconsistent with the complainant's account, that demonstrate the nature of the relationship between the parties, or that bear on the credibility of the allegations are directly relevant to the defence case. A family violence lawyer in Melbourne secures and analyses the available electronic communications at the earliest stage of the matter, including those held by the accused and those that can be obtained through the prosecution brief or by subpoena.

When is a defence expert used in a family violence defended hearing?

Expert evidence in family violence criminal proceedings is less common than in some other categories of serious criminal matter, but arises in specific circumstances. Medical evidence about the nature or cause of injuries may be challenged by a defence medical expert where the prosecution relies on medical opinion about injury causation. Expert evidence about family violence dynamics, including the pattern of behaviour in the relationship, may be relevant in some matters. The decision to brief a defence expert is made by the family violence lawyer having regard to what the prosecution's expert evidence establishes and whether a defence expert could effectively challenge it.

The Defended Hearing Itself

How does a family violence lawyer cross-examine the complainant?

Cross-examination of the complainant in a family violence defended hearing is the most critical part of the defence case in most contested matters. A family violence lawyer in Melbourne prepares the cross-examination from a detailed analysis of the complainant's statements, identifying the inconsistencies, the areas where the complainant's account is unsupported or contradicted by other evidence, and the specific propositions the cross-examination needs to advance. The cross-examination is structured to build the defence case in the magistrate's or jury's mind rather than simply to attack the complainant's credibility generally, which is rarely an effective approach.

What if the complainant does not wish to give evidence?

A complainant in a family violence criminal proceeding can be compelled to give evidence as a witness for the prosecution, notwithstanding their preference not to do so. The prosecution may also seek to rely on the complainant's prior recorded statement in some circumstances under the Evidence Act 2008 (Vic). A family violence lawyer in Melbourne advises on the implications of a complainant's reluctance to give evidence, including how the prosecution may seek to present the evidence in those circumstances and what arguments are available to the defence in response.

What other witnesses are typically called in a contested family violence hearing?

Other witnesses commonly called in contested family violence matters include police officers who attended the scene, persons who witnessed all or part of the alleged incident, persons who observed the complainant shortly after the alleged incident, and medical practitioners who examined the complainant. A family violence lawyer in Melbourne cross-examines each prosecution witness on what they directly observed, how they came to have the knowledge they claim, and any inconsistencies between their evidence and other material in the brief. The defence may also call witnesses to support the accused's account of events.

Specific Defences in Family Violence Matters

What defences are available in contested family violence charges?

The available defences depend on the specific charge. For assault and related charges, self-defence is available where the accused used force that was necessary and reasonable in response to an unlawful threat. Duress is available in limited circumstances. Where the charge requires proof of a specific mental element, such as intention, that element can be contested where the evidence does not establish it beyond reasonable doubt. Identity, where the accused disputes being the person who committed the conduct, is available where identification evidence can be challenged. Each defence is built from the specific facts and evidence in the matter.

How is self-defence approached in a family violence context?

Self-defence in a family violence context is available under the Crimes Act 1958 (Vic) but requires careful preparation. The defence must establish that the accused genuinely believed that their conduct was necessary to defend themselves or another person, and that their conduct was a reasonable response to the threat as they perceived it. A family violence lawyer in Melbourne building a self-defence case gathers evidence about the prior history of violence or threats in the relationship, the respective physical circumstances of the parties, and what the accused believed was happening at the time. Prior incidents that were not reported to police can be relevant and can be established through the accused's evidence and corroborating witnesses.

What is the impact of an intervention order on the criminal proceeding?

A family violence intervention order is a civil order and its existence is not proof of the conduct alleged in a criminal charge. However, where the criminal charge includes a breach of an intervention order count, the existence and terms of the order are directly relevant. The fact that a civil intervention order was made on the balance of probabilities does not establish the criminal charge beyond reasonable doubt. A family violence lawyer in Melbourne advises on how the existence of an intervention order affects the criminal proceeding and ensures that the different standards of proof in the two proceedings are properly maintained.

After the Defended Hearing

Can the outcome of a defended hearing be appealed?

Yes. A finding of guilty in the Magistrates Court following a defended hearing can be appealed to the County Court, which hears the appeal as a fresh hearing. An appeal against sentence is also available. Appeals from the County Court on questions of law go to the Court of Appeal. A family violence lawyer in Melbourne advises on the prospects of appeal after any outcome, including the grounds available and the likely timeline and cost of the appeal process.

Selection of Counsel

What should I look for in a family violence lawyer for a contested hearing?

A family violence lawyer in Melbourne who is handling a contested defended hearing needs experience in the specific evidentiary framework that applies to family violence proceedings in Victoria, skill in cross-examining complainants in domestic settings, familiarity with self-defence and other available defences, and advocacy experience in the Magistrates Court and, where required, the County Court. Experience specifically in contested family violence hearings, rather than general criminal defence practice, is the most directly relevant credential for this category of work.

When should I engage a family violence lawyer for a contested hearing?

At the earliest possible stage after charge, and before any police interview. The approach to contesting a family violence charge, including the decision about whether to defend the matter and on what grounds, is best made with full legal advice from the outset rather than after preliminary steps have been taken. A family violence lawyer engaged early can also advise on the management of any related intervention order proceedings running alongside the criminal charge.

If you are facing family violence criminal charges and looking for a family violence lawyer in Melbourne with experience in contested criminal proceedings, Doogue + George Defence Lawyers is among the firms with senior practitioners active in this area. Engaging a family violence lawyer before any police interview is the most consequential step available at the early stage of any family violence criminal matter.