Friday, March 24, 2006

Terry Carson: Ignore justice at our peril

It is rare to read an article by a lawyer about a legal topic that avoids the use of the word justice.

However, Catriona MacLennan in her article on the Domestic Violence Act has managed it.

In decrying the falling numbers of temporary protection orders issuing from the Family Court she, in effect, asks for standards in the Family Court to be lowered so more orders can be made.

This approach ignores important justice considerations.

The Family Court is foremost a court of justice.

The fundamental principle that underpins all civilised legal systems is that no one should have a court order made against them without first being informed of the allegations made against them and being given an opportunity to be heard.

It follows that any departure from this rule, such as applies in the case of temporary protection orders, should be approached with caution and only be permitted in truly urgent and appropriate cases.

The effect of a temporary protection order on its recipient is immediate and serious.

The man (to follow Ms MacLennan's gendered approach) who kissed his partner goodbye at 8am can find that by 5pm he has been barred from his home with only the clothes he stands up in.

Any attempt, however innocuous, to contact his partner or children can see him arrested without warrant and placed in police custody.

He may then be prosecuted and face a term of imprisonment.

All this can come about on the unchallenged affidavit testimony of a partner with whom he may have been in marital discord for many months.

It is not surprising that any responsible court of law that has such potentially draconian powers to interfere with a subject's liberty without first giving notice to or hearing from that person, might wish to exercise the power cautiously.

The Family Court is also well aware that not all applicants for temporary protection orders are completely reliable with the truth.

Using temporary protection orders to gain the advantage of the possession of a property and to complicate and drag out disputes over childcare are unfortunately all too common.

At the Child and Youth Law Conference in April 2004, Family Court Judge Jan Doogue said she and other Family Court judges had no doubt that in some cases a temporary protection order was being used as a "weapon".

The judge also referred to the difficulties faced by some children who were prevented by a temporary protection order from having beneficial contact with the absent parent.

Ms MacLennan expressed surprise that the fact that a woman was in a refuge was not regarded as sufficient by some judges to prove that an urgent protection order was necessary.

I acted for a young man who was served with a temporary protection order after his former girlfriend went to a women's refuge.

It turned out he had never been violent and had not had any contact with the former girlfriend for some months.

She had been living with her mother who had thrown her out after getting tired of babysitting for days on end while her daughter partied.

The young woman had lied to get into the refuge and later had no compunction in repeating the lies in her affidavit to get the temporary protection order the refuge had insisted on.

Justice finally prevailed at some expense to the innocent young man.

Clearly there is a need to ensure that any person suffering domestic violence receives proper protection.

The Domestic Violence Act already contains wide definitions of what constitutes domestic violence.

In clear and serious cases a well-drafted application will usually secure a temporary protection order.

There will always be borderline cases where a judge will wish to hear both sides of the story before making an order that significantly affects the fundamental civil rights of one of the parties.

Such an approach is entirely consistent with the function of a proper court of law.

The thousands of temporary protection orders made over the past 10 years do not seem to have made any real impact upon domestic violence in our community.

It is unlikely that making more orders against men, where the evidence has not clearly proved them to be violent, will alter that situation.

It will, however, increase the numbers suffering injustice and will lower respect for the Family Court.

* Terry Carson is a barrister and solicitor who has practised in the field of family law for 35 years.

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