The Undesirability of Appeals in the Family Court
Recently, we have had a number of cases where parties have good prospects to appeal, but a decision has been
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2 November 2021
When a Protection Order Application is taken out by your ex-spouse, they are making allegations that you have committed domestic violence against him or her and / or you have threatened to commit domestic violence; and they are seeking an Order for protection against you.
After the Application is filed in a Magistrates Court, the police will be requested to serve a copy of the Court documents upon you.
If one day you are served with a Protection Order Application, then these are five (5) things we recommend you do:-
Has there been a Temporary Protection Order issued?
Your ex-spouse can seek a Temporary Protection Order (“TPO”) be made by the Court before you are provided any notice of the Application. Your ex-spouse will need to assert within the Application that his or her matter is urgent, and that immediate protection is required.
If you have been served with a TPO (together with the Application), it is important that you read the terms of the TPO carefully.
A TPO sets out conditions and prohibitions upon you to act or behave in certain ways against your ex-spouse. For example, you will be required to be of good behaviour and not commit domestic violence. You may also be prohibited from contacting or approaching your ex-spouse.
A TPO has the same force and effect of a final Protection Order and therefore, it is important that you do not breach the terms of the TPO. Otherwise, the Police may charge you with a criminal offence for those breaches. This will bring about a separate criminal proceeding and further, may adversely impact your prospects in the domestic violence proceeding and/or any Family Law proceedings.
It is very important that you understand the terms of the TPO to ensure that you abide by the terms of the Order. We recommend that you obtain legal advice after you have attended to the remaining three (3) steps below.
When and where am I required to attend Court?
After you have ascertained whether a TPO has issued, we recommend that you flick to the last page of the Protection Order Application, where it states when and where the matter has been set down for a First Mention in Court.
The First Mention is not a hearing/trial. You are not required to file any Court documents prior to your appearance at the first mention.
The Magistrate will want to find out what your intentions are in response to the Protection Order Application or whether you have had the opportunity to obtain legal advice.
The Court will also determine whether a TPO ought to be issued or if one has been issued, whether conditions of the TPO need to be amended.
It is important that you attend Court on the day that your matter is listed. If you fail to attend Court, then there is a significant risk that a final Protection Order will be made against you in the terms sought by your ex-spouse, for a period of 5 years. This is called a Default Order.
What are the Allegations Made Against Me?
After you have found out whether a TPO has issued and when you are required to attend Court, then we recommend that you spend some time reading the contents of the Application, being the allegations which your ex-spouse has made against you.
We recommend you take some notes as you read. For example, recording your version of events or noting whether you agree and/or disagree with the allegations made by your ex-spouse. This will be useful for you when you speak your lawyer.
What if I am Actually the One Needing Protection from Domestic Violence?
Finally, there may be circumstances where you are concerned about your own risks of domestic violence perpetrated by your ex-spouse. If you consider that you are actually the most in need of protection, then you can file also an Application for Protection Order against your ex-spouse. This is called a Cross-Application.
If you make a Cross-Application against your ex-spouse, the matters will be listed in Court on the same day and heard together. The Court is required to determine which party is most in need of protection.
Your lawyer will be able to provide you with legal advice in relation to your prospects of obtaining a Cross-Protection Order.
Contact a Lawyer to Obtain Legal Advice
After you have had the opportunity to attend to the above four (4) steps, we recommend that you engage a lawyer to obtain legal advice and representation on your behalf as soon as possible.
Our Senior Associate Dora Ko has had extensive experience in domestic violence matters. She has successfully achieved outcomes for clients to ensure of the safety physically, emotionally and psychologically. Dora has also successfully defended Protection Order Applications, particularly when they have been employed as a means of control and intimidation by our clients’ ex-spouses.
If you need any advice in relation to your family law matter and/or domestic violence matter, please do not hesitate to contact Dora Ko or our client services manager, Tyanne Su’A to discuss same.
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