How to respond to a Protection Order Application
Domestic violence and family violence has become a concerning trend in the midst of separation and family law disputes. When people are involved in relationships or are in the depths of separation and believe that they are or have been subject to domestic violence, the avenue for legal recourse is to seek a protection order from the court. A protection order may be sought by the individual themselves or by police on behalf of the alleged victim.
It is becoming increasingly common for protection orders to be used as leverage in family law disputes particularly with respect to children’s care and living arrangements. Given this disturbing movement, it is fundamental that if a protection order has been filed against you, that you, the respondent, are aware of your legal options when responding to a protection order application.
There are 4 options available to a respondent in domestic violence proceedings. These are:
- Consent ‘without admissions’;
- Negotiate an Undertaking; or
- Contest the application.
Let’s look at each of these options in further detail.
1. Consenting to an Application for a protection order
If you consent to an Application for a protection order you agree that the facts contained in the application are true and correct. This includes any allegations against you being domestically violent or having perpetrated domestic violence against the aggrieved.
Consenting to a protection order can result in serious consequences when it comes to family law matters particularly parenting matters. A finding that you have committed domestic violence against the aggrieved or any named persons can be used in support of an argument that you pose a risk to a child or children of the relationship, which can ultimately affect the ongoing care and living arrangements for the child or children.
2. Consenting ‘without admissions’ to an Application for a Protection Order
If you consent without admissions to a protection order, you are agreeing to the court making a protection order, however, you are not admitting to the allegations contained in the application or the facts alleged by the aggrieved.
Often parties choose to consent ‘without admissions’ to avoid lengthy, hostile and costly proceedings. A protection order issued on a ‘without admissions’ basis does not assume that an act of domestic violence has taken place, rather it says that you agree to a protection order being in place because you have not committed any acts of domestic violence against the aggrieved.
If you fail to appear in court after having been served with a protection order application or fail to meaningfully engage in protection order proceedings, you may find that the court will make a temporary protection order or a final protection order in your absence. This will not be made on a ‘without admissions’ basis and can result in an adverse inference against you.
Whether you consent with or without admissions, a protection order will be made immediately and you will be provided with a copy either directly from the court or by post. This ultimately means that your matter is finalized by way of a protection order in the conditions imposed by the court or negotiated between the parties or their lawyers. The conditions and prohibitions in a protection order can be tailored to reflect the particular circumstances of the case.
3. Negotiating an Undertaking
The applicant and/or aggrieved in a protection order may agree to withdraw their application on the basis that the respondent provides an undertaking. An undertaking is not an order of the Court, rather it is a promise to the court that you will or won’t do certain things. The most common condition being ‘that the respondent will be of good behaviour towards the aggrieved and not commit domestic violence’.
An undertaking can include the same or similar conditions as a protection order and can be for a specified period of time. Generally, the court will require an undertaking in writing and signed by the parties although, it is possible for the respondent to give an oral undertaking to the court.
There are two critical differences between an undertaking and a protection order. These are:
- A breach of an undertaking cannot be enforced and is not considered a criminal offence whereas a protection order, on the other hand, carries significant penalties if breached. An undertaking can, however, be used in evidence at a later date if the aggrieved decides to bring a new application for a protection order. This usually occurs after a breach of the undertaking has taken place.
- When commencing proceedings in the Family Law court the necessary paperwork (an Initiating Application (Family Law) form) requires a copy of any existing undertakings to be provided to the court. Although undertakings must be provided, the existence of an undertaking is not a specific factor that must be considered when determining custody of or the best interests of a child or children.
In short, undertakings provide parties with the opportunity to negotiate and resolve their protection order proceedings without having to incur the emotional trauma and expense of a trial.
4. Contesting the application for a protection order
If you completely disagree and wish to fight a protection order in its entirety then you should choose to contest the application and the court will have to make a decision whether a protection order is ‘necessary or desirable’ having considered the factors contained in the Domestic and Family Violence Protection Act 2012.
The application will be set down for a trial in which you and the aggrieved and/or applicant will need to file affidavits as directed by the court and will be subject to cross-examination. A trial can be a costly and traumatizing process and is something that should be avoided where possible. During the trial, the Magistrate will consider the underlying facts of the case and formulate a conclusion. At the end of the trial, if the court orders a protection order then rightly or wrongly, it is deemed in the eyes of the court following a trial there is a finding of fact against you that you have perpetrated domestic violence against the aggrieved. That is a conclusion by a Magistrate regarding the underlying facts of the case under consideration.
Domestic and family violence can at times play a significant role in a relationship breakdown and the political and legislative responses have been geared towards making systems for obtaining protection more ‘user-friendly’. This creates a problem for individuals who have to respond to applications that are malicious or vexatious. In the absence of physical abuse, domestic and family violence or lack thereof can be difficult to prove which makes the trial process an impractical exercise for respondents. As such, it is critical that you obtain independent legal advice upon being served with a protection order. Your legal adviser should be able to outline the options available to you and give you an in-depth analysis as to how this could affect your relationship with the aggrieved and any subsequent matters such as parenting and property settlement matters. Often the ramifications of a protection order do not end once the protection order is made. The conditions and restrictions must be considered holistically in the context of your relationship and your family.
What are my rights? What does this protection order mean for me my child and/or my children? What should I do if a protection order is made? These are questions that should be answered by your legal advisor.