I have been served with an Application for a Protection Order – what are my Options?
Domestic violence and family violence have become a concerning trend when couples separate, and family law disputes are ongoing.
It is becoming more common for protection orders to be initiated in additional to commencing family law proceedings. A protection order can have a significant impact on court orders made in relation to children’s care and living arrangements.
Given this movement, it is fundamental that if a protection order has been filed against you that you be aware of your legal options when responding to a protection order application and how this can negatively impact your position in your family dispute before the court.
There are four options available to a respondent (this is the term used for the person whom a protection order application is filed against) in domestic violence proceedings. These are:
Consent without admissions;
Negotiate an undertaking; or
Contest the application.
Let’s take a more detailed looked at each of these options.
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 of committing acts of domestic violence against the aggrieved (this is the term used for the person who files an application for a protection order).
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 can be used in support of an argument that you pose a risk to a child or children of the relationship. This can ultimately affect the orders a court makes in regards to the children’s care and living arrangements as it is paramount that a court protect children from the risk of family violence.
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 in the application or the facts alleged by the aggrieved.
This is a common option chosen by parties to avoid a 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. In these circumstances, an argument that you pose a risk to a child or children of the relationship is more difficult to prove as the facts alleged against you have not been properly tested before the court at Trial.
Negotiating an Undertaking
The 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 will not do certain things.
An undertaking can include the same or similar conditions as a protection order and can be for a specified period of time.
Although an undertaking is not a court order, if you do not keep the promise made in the undertaking, there are serious consequences that a court can order against you.
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.
If you choose this option – the application will be set down for a Trial in which you and the aggrieved will need to file affidavits as directed by the court and will be subject to cross examination. During the Trial, the Judge 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 it is deemed in the eyes of the court that you have perpetrated domestic violence against the aggrieved.
If a protection order is ordered against you by the court after a Trial is held, that can result in serious consequences when it comes to your family law matter, in particular parenting matters.
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