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STEPHEN IORNS
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Restraining and Protection Orders

August 30, 2014

There are two instruments the Courts use with a view to protecting people from physical and psychological abuse. In the Family and Criminal Courts, Protection Orders are routinely granted. In the Family Court, there is the ability to apply for a temporary order that is granted without any notice on the other party, to protect the party who obtains the Order pending a full hearing into the matter. Protection Orders are also issued by the criminal Courts, at sentencing for certain domestic violence offences, where the victim does not object and the Court sees fit. This article deals with what to do in the Family Court. If you’re wondering about this in the Criminal Courts, ask your lawyer. If you don’t have one; get one.

 

Let me point out here that if you’re seeking out information on how to apply for a protection order, contact a family Court lawyer today. Pays not to muck around with this stuff…. A list of good family court lawyers can be found here. If you’ve been served with a Temporary Order, or an application for a Final Order, read on.

 

Now, the difference between a Restraining Order and a Protection Order is essentially the relationship between the people involved. A Restraining Order is granted by the civil jurisdiction of the District Court on application under the Harassment Act 1997, and can be taken out against any person, if certain criteria (which I’ll get to soon) is met. A Protection Order is granted by the Family Court under the Domestic Violence Act 1995, and can only be taken out against someone with whom the applicant has been in a domestic relationship of some sorts – basically, a spouse, partner, family member, flatmate, or close personal friend.

 

I’m going to explain each of these things from different angles – as I said, if you need to apply for a protection Order, get a specific Family Court lawyer. If you need to apply for a Restraining Order, or defend a Protection Order, read on, as I explain the ins and outs.

 

Grounds to apply for a Restraining Order

 

Restraining Orders are designed to stop harassment. The test to get one is a little bit confusing, due to the way the Act was written, but, in short, there are five hoops to jump through, in showing the Court that the granting of an Order is appropriate. You can find these in Sections 16, 3 and 4 of the Harassment Act.

 

First, you need to show the Court that there has been harassment. Harassment is defined I Section 3 as a pattern of behaviour where two or more “specified acts” have been directed at a person within a space of twelve months. Now, this period does not have to be the 12 months immediately before the application was filed. So, basically, if two specified acts have been directed at you within a 12 month period, the first box is ticked. What on earth is a specified act I hear you say? Well, that’s found in Section 4 of the Harassment Act:

 

4 Meaning of specified act

(1) For the purposes of this Act, a specified act, in relation to a person, means any of the following acts:

(a) watching, loitering near, or preventing or hindering access to or from, that person's place of residence, business, employment, or any other place that the person frequents for any purpose:

(b) following, stopping, or accosting that person:

(c) entering, or interfering with, property in that person's possession:

(d) making contact with that person (whether by telephone, correspondence, or in any other way):

(e) giving offensive material to that person, or leaving it where it will be found by, given to, or brought to the attention of, that person:

(f) acting in any other way—

(i) that causes that person (person A) to fear for his or her safety; and

(ii) that would cause a reasonable person in person A's particular circumstances to fear for his or her safety.

(2) To avoid any doubt, subsection (1)(f) includes the situation where—

(a) a person acts in a particular way; and

(b) the act is done in relation to a person (person B) in circumstances in which the act is to be regarded, in accordance with section 5(b), as done to another person (person A); and

(c) acting in that way—

(i) causes person A to fear for his or her safety; and

(ii) would cause a reasonable person in person A's particular circumstances to fear for his or her safety,—

whether or not acting in that way causes or is likely to cause person B to fear for person B's safety.

(3) Subsection (2) does not limit the generality of subsection (1)(f).

 

So, basically, if any two of those things in Section 4 occurred within a twelve month period, you’ve jumped through the first of five hoops.

 

The test is found in Section 16 of the Act:

 

16 Power to make restraining order

(1) Subject to section 17, the court may make a restraining order if it is satisfied that—

(a) the respondent has harassed, or is harassing, the applicant; and [hoop one]

(b) the following requirements are met:

(i) the behaviour in respect of which the application is made causes the applicant distress, or threatens to cause the applicant distress; [hoop two] and

(ii) that behaviour would cause distress, or would threaten to cause distress, to a reasonable person in the applicant's particular circumstances; [hoop three] and

(iii) in all the circumstances, the degree of distress caused or threatened by that behaviour justifies the making of an order; [hoop four] and

(c) the making of an order is necessary to protect the applicant from further harassment. [hoop five]

 

(2) For the purposes of subsection (1)(a), a respondent who encourages another person to do a specified act to the applicant is regarded as having done that specified act personally.

 

(3) To avoid any doubt, an order may be made under subsection (1) where the need for protection arises from the risk of the respondent doing, or encouraging another person to do, a specified act of a different type from the specified act found to have occurred for the purposes of paragraph (a) of that subsection

 

As you can see above, hoops two and three are reasonably self explanatory. The last two steps in this test can provide significant room for argument, though.

Hoop number four requires looking at the circumstances, the distress acrually caused, and the actual behaviour. Weighing up those factors, the court has to look at whether they justify an Order being granted.

 

Hoop number five, while it may appear similar, is directed at necessity. Is the Order necessary. Was the behaviour contextual and unlikely to be repeated? Has the behaviour stopped without the Order anyway? Or, given all of the facts before the Court, is it necessary to grant protection and restrain the respondent?

 

Harassment Act proceedings present a deal of challenges, whether they are being defended or prosecuted. We’ve seen experienced lawyers fall in to the trap of putting hearsay in affidavits, and failing to file evidence of each and every one of those five hoops. In those instances, applications fail and costs are in issue. We’re experienced at both issuing and defending these applications, and know a few of the tricks of the trade, that make your position easier to argue whichever side of the application we are on.

 

Protection Orders

 

Conversely, with Protection Orders, we only defend them, and even then, take on only select cases. At one point, Stephen had an impressive run of successfully defending protection Order proceedings. This was in part due to the advice given right at the start being followed by most of his clients. The record was broken by a client who failed to follow advice, and required ejecting from his own case due to a tirade of abuse. FYI, not a good way to show the Court you’re not an angry man…  

 

As I explained earlier, protection Orders are designed to protect people from those close to them. They are subject to a three step test, which basically requires:

 

1) A domestic relationship

2) A history of domestic violence, being physical or psychological abuse, and

3) Necessity.

 

Only one of our cases ever hinged on step one; we won that one, and a cost award. They should have issued proceedings under the Harassment Act…  The vast majority of cases concern a factual dispute about either step two or three.

Both issues need to be decided on balance. There may be a dispute as to what exactly happened. There may be legal arguments about whether agreed facts constitute psychological abuse. Whatever the issue, it needs to be properly before the Court.

 

The final step is often the one that bears fruit. Necessity. While it’s not a hard hurdle to surpass when you’re applying, if the right steps are undertaken while awaiting hearing, a final order can usually be avoided.

 

In a large number of cases, a temporary order has been granted and runs while awaiting hearing. We always advise our clients to strictly comply with the Order, undertake the programme that is directed, take additional courses and or counselling in domestic violence (if applicable) and address any issues that may have lead to the facts. That way, even if we’re disputing that any violence occurred, and even if we’re arguing that behaviour did not amount to psychological abuse, in the event the Judge does not agree there is usually a valid argument that due to the steps undertaken between the acts leading to the application and the hearing, a protection order is no longer necessary. In some cases, we settle before hearing by having our client sign an undertaking saying they won’t do anything that would be a breach of a protection order – this means the applicant can easily go to Court to get an Order if the undertaking is breached, but, employment and other prospects are not hindered by the granting of the Order.

 

At the end of the day, both restraining and protection orders have their place. When they are necessary, a prompt application needs to be made, and made well. When they are not necessary, or made on the basis of lies and omissions, they ought be rigorously defended with the assistance of a good lawyer. Contact us if you need one...

 

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