Understanding the Court process for applying and obtaining Family Violence Restraining Order can be tricky. There are important Court dates and processes that you must understand to ensure your safety. Below is a summary of the step by step process:
Make your application in your local Magistrates Court
To do so, you need to complete an application and affidavit and file at your local Magistrates court. Your affidavit needs to support that your application providing evidence that you have been victim of domestic violence and it is likely to happen again or that there is a real likelihood of you been victim of violence without the order. If there has been a long history of abuse, I suggest you focus on the most serious incidences that have happened most recently. Incidences where you have evidence such as police report numbers, medical history or witnesses will be beneficial as this material can be used at your final hearing (if objected too). In your application you can include your children if they have been victim or exposed to violence. Exposure can include seeing or hearing and cases of violence against you. If your children aren’t named on the Order they will not be protected.
You will be given a court date (usually within a few days of applying for a restraining order) to attend court and give you evidence. The other party will not be aware of this court date and you will attend in a closed court room (ie just you, your support person or lawyer and the Magistrate or Justice of the Peace). This is called an ex parte hearing. You can use a lawyer at this court date, bring a friend or relative, access a duty lawyer or victim support services if you think you need a support.
You will be required to provide verbal evidence to support your application. The evidence should be in respect of the incidences covered in your application and any other significant matters you haven’t included. The court will ask if there are any circumstance you want to permit contact such as arranging children or the divorce. Think about this carefully of you want to include as this is a means to continue contact and creates a bit of a grey area when it comes to breaches. It may difficult to get your head around at the moment, but having no contact can be really beneficial in moving forward.
Potential Outcome from the first court date
The Court will either grant-
– Grant an interim order
– Dismiss your application- if the court consider there has not been violence or there is no threat of violence, they will not grant your order and dismiss your application
– Adjourn the matter for a court date in which the respondent is also present- the court may choose to do this if you have been unable to present a strong case or there is a reason the interim FVRO may cause significant and unjustifiable burden to the respondent. This would occur in only very limited circumstances. At this court date, if the court considers it appropriate you will be given an interim order and it will be listed for final hearing if the respondent objects.
The Respondent will be served the interim order. The order will not be in place until the police have served him the order and therefore any contact between the court date and service will not be a breach. He will have 21 days to file an objection.
– If he doesn’t object your Order will become a final two-year order. The Court will send you a copy of your final order.
– If he does object within the time period, you will be notified and a second court date will be set. You both must attend this court date. You need to be prepared mentally as he will be at court. If you feel unsafe you can have the court security escort you to and from your car. If you do not attend, your application will be dismissed. If he doesn’t attend his objection will be dismissed and your order will become final. The Magistrate will want to hear from both you and him as to if you wish to proceed with your application and how many witnesses you will call at a final hearing. The Magistrate will then list your matter for a final hearing.
To prepare for the final hearing, it is advised you write out a timeline and summary of keys incidences. Make sure you print and bring with you any relevant photos or text messages. If there has been someone witness an incident, it is recommended you ask them to be a witness. If they refuse, you can issue a subpoena. If your ex has criminal record of previous violent crime or harassment of former spouses, you should obtain a copy from the police.
At the hearing, you will both be required to attend and give evidence. You will be required to give your evidence first and then him or his lawyer will ask you questions. If he is acting for himself, the Magistrate may require he ask questions through them so he doesn’t speak to you directly. You are then required to call your witnesses (if you have any). You will ask the witnesses questions and then him or his lawyer will be able to also.
Next up will be his opportunity to give evidence. You will then be able to ask him questions. He may also have witnesses which he will question and then you may also.
The Magistrate will then make a decision based on the evidence as to whether to grant you a final restraining order for two years or to dismiss your interim order.