Being served with an application for a Protection Order can be quite overwhelming. It can be difficult to know how you wish to respond to that application without knowing exactly what the Court will be looking at.
For an application for a Protection Order to be successful, the applicant must prove the following three elements to the Court:
1. That there is a relevant relationship;
2. That an act of domestic violence has occurred;
3. That an order is necessary or desirable.
To explain that in further detail:
1. A relevant relationship includes a de facto relationship, family relationship or marriage.
2. To prove that an act of domestic violence has occurred, the applicant will have to prove that there has been:
a. Physical violence; or
b. Emotional or psychological abuse; or
c. Economical abuse; or
d. Threats; or
e. Coercion; or
f. Controlling or dominating behaviour that causes the applicant fear for their safety or wellbeing.
3. For an order to be “necessary or desirable”, the Court must be satisfied that the applicant is considered to be vulnerable and that it is likely that the respondent would commit an act of domestic violence in the future.
When considering how you would like to proceed, there are 4 options that are available to you, these are to:
1. Seek withdrawal of the application;
2. Give an undertaking to not commit domestic violence;
3. Consent to a final order, without admissions; or
4. Oppose the application and proceed to trial where a Magistrate will determine the matter.
Negotiating for the Application to be withdrawn
You can engage a solicitor to write to the applicant outlining your position. The applicant may then realise that the above elements cannot be satisfied and may consider withdrawing the application to bring about an earlier resolution to the matter.
You can engage a solicitor to write to the applicant and offer an undertaking. An undertaking is a promise that you will be of good behaviour and not commit domestic violence, and any other promise that may be negotiated. If an undertaking is breached; the ramifications are less severe than breaching a Protection Order and there are no automatic criminal ramifications to breaching an undertaking.
Consenting to an order without admissions
You, or a solicitor acting on your behalf, can consent to an order without admissions. This essentially means that you do not admit or agree with the allegations contained within the application before the Court, but that you agree to an order being made.
This order is not something that will appear on your criminal history or on the public record. Therefore, it may not be necessary to disclose it for the purpose of travel or employment however, you will need to look at the individual circumstances in which you are being asked. Once an order is made against you it is important that you don’t breach the conditions, to do so would then be a criminal offence. The first offence of breaching an order has a maximum penalty of 3 years imprisonment, any subsequent breaches have a maximum penalty of up to 5 years imprisonment.
The standard length of an order is 5 years, however, it is possible to negotiate for a shorter time frame. The Court may be minded to grant a shorter period if it can be successfully argued that the shorter timeframe would still adequately provide for the safety, protection and wellbeing of the applicant. This would be beneficial as it would reduce the time frame in which you could potentially breach the order.
If you are engaged in Family Law proceedings, or will be in the future, this option can be beneficial as the Family Court cannot draw an inference arising from the order, as there has been no finding of fact by the court. A finding of fact is only made if an application for a Protection Order is contested, proceeds to trial and the Magistrate decides to grant an order.
The final option would be to proceed to a trial. The matter is listed for a hearing and both the respondent and aggrieved will be required to attend in person and be subjected to cross-examination.
The Magistrate will hear and consider the evidence and must be convinced of the aforementioned 3 elements. Proceeding to trial can be a risk and the outcome can depend on how all parties present as witnesses. Essentially, unless there is documentation that can be produced as evidence or a witness to any acts of domestic violence, it is a ‘he said, she said’ matter.
Have you been served with an application for a Protection Order?
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