Navigating Family Violence proceedings requires a careful and strategic approach, in particular in final hearings when the Court needs to determine whether a temporary protection order should become permenant or not. While it’s natural to feel frustrated or wronged, blaming the other parent can inadvertently send the wrong message to the court. It may suggest that you still holding a grudge, reinforcing the perception that there is a likelihood of future conflict or violence.
It would be ideal if they acknowledge both sides of the story but the fact that they do not. I have been in many Family Violence hearings and it is common for Judges to say ” he/she filed an application claiming that she/he has inflicted violence – so as a respondent, the expectation is to respond and prove that if the violence has happened or not as claimed” . The Judge’s role is to determine whether violence has been inflicted or not, as claimed by the applicant. To do it right – try to separate your defense from your claims or file a cross-application so your claims are addressed.
Understanding the Court’s perception
Respondents in protection order cases may enter proceedings expecting the court to determine fault or blame. However, the court’s primary concern is whether a protection order is necessary in the future to ensure the safety and wellbeing of the applicant and any involved children.
This understanding helps respondents prepare their cases in alignment with the court’s assessment rather than trouble and not achieving resolution.
Understanding the court’s perspective and how they see it from their angle and the law is crucial. Their primary focus is not on assigning fault but on assessing whether a protection order is necessary for safety and well-being. In this blog, we’ll explore insights from the landmark case of Surrey v Surrey [2008] NZCA 565, discuss how to avoid common pitfalls like blaming, and outline constructive ways to present your case. By aligning with the court’s focus, you can advocate effectively while prioritising a resolution that benefits everyone involved. We know it is not easy but it can be done !
In the case of Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581, (2009) 27 FRNZ 968, the Court of Appeal clarified a major issue when assessing if a protection order is to become final or not. The court noted that
“the question is not who promoted a given situation, it is whether the protection order is needed” ([112]).
Evaluating Necessity
The court assesses the necessity of a protection order by considering:
- Risk of Future Harm: Whether the applicant faces ongoing danger or harm.
- Patterns of Behavior: Whether the respondent’s actions suggest an ongoing or future threat.
- Reasonable Fear: Whether the applicant’s perception of fear is supported realistic and subjective.
Why Blame is Irrelevant
The court’s focus is on safety and future protection, not on assigning fault for past actions. Decisions are based on:
- Safety as the Priority: The goal is to protect individuals from harm.
- Evidence-Based Decisions: The court relies on objective evidence to determine the necessity for protection.
- Constructive Outcomes: The court focuses on ensuring future safety, not on resolving disputes over past conduct.
Respondents’ Option to File a Cross-Application
If a respondent believes they have been subjected to violence, they have the option to file a cross-application for a protection order at the start of the process. This allows them to seek protective measures for their own safety, based on evidence of harm inflicted against them.
Preparing Your Case Constructively
To approach a protection order case effectively, respondents should:
- Acknowledge the Court’s Focus: Understand that the court’s focus is on the necessity of a protection order to ensure safety.
- Provide Clear Evidence: Present evidence to show whether there is a continued risk or need for protective measures.
- Avoid Escalating Conflict: Focus on presenting factual and relevant information rather than engaging in emotional arguments or shifting blame.
- File a Cross-Application if Necessary: Respondents can file a cross-application if they believe they need protection as well.
Conclusion
Understanding the court’s focus on the necessity of protection orders rather than assigning blame allows respondents to approach their cases with clarity. This focus on safety and protection helps ensure that the outcome prioritizes the well-being of those involved.
Disclaimer
This article is intended for general informational purposes and is not a substitute for legal advice. For specific concerns, please consult a qualified legal professional.
