It can be a daunting situation to be served with an application for a protection order. It can be even more daunting to be informed that you will need to attend court for the application to be dealt with. It begs the question; what are my options when I am served with an application?
There are a number of ways that an application for a protection order can be dealt with.
Consent to a final order without admissions
Effectively, by consenting to a final protection order without admissions, you would be agreeing to a final order being implemented but on the basis that you do not accept the allegations that have been made against you. You can agree to an order in the same terms as the temporary protection order (if one is in place) or attempt to negotiate the terms you will agree to. For a final order to be implemented without admissions, you would need to communicate to the other party and the court that you consent to a final order being imposed. It is important that you are aware that any final order would remain in place for the mandatory period of five years, unless you and the other party agree to (and the Court accepts) a shorter timeframe.
Propose an undertaking
An undertaking is a promise to the court to comply with certain requirements. You may wish to propose an undertaking to resolve domestic violence proceedings, however, it would need to be accepted by the other party and the Court in order for the proceedings to resolve. Similar to consenting to an order without admissions, you could propose an undertaking on the same terms as the temporary protection order (if one is in place) or attempt to negotiate the terms. If you breach an undertaking, there is not necessarily any direct punitive action to be taken, however, this may result in the other party filing a further application for a protection against you or filing an application for contempt of Court. Their prospects of success would likely be greater if they can demonstrate breaches of an undertaking.
Contest the application
Finally, you have the ability to contest an application for a protection order in the event you are opposed to a final protection order being imposed on the basis that the application does not satisfy the requirements for a final protection order. Those three elements are:
- there is a relevant relationship;
- there has been an act of domestic violence; and
- an order is necessary or desirable moving forward.
Contesting an application is appropriate in circumstances where, on your case, these elements are not satisfied. In order to contest an application, your matter would need to proceed to a final hearing. Prior to that hearing, directions would be made by the Court for the filing of evidence by both parties and the issuing of subpoenas. At the final hearing, the magistrate will make “findings of fact”, which means that, after hearing the parties give oral evidence, they will determine whether or not you have committed the domestic violence that has been alleged.. It is recommended that a barrister represent you at the final hearing.
Divorce Lawyers Toowoomba at Best Wilson Buckley Family Law, we are able to assist you in navigating domestic violence proceedings, irrespective of whether you are the respondent or the aggrieved in the proceedings. In the event you require assistance with domestic violence proceedings, please reach out to one of our team members to see how we can support you.