A temporary protection order will continue until it is further dealt with... The first set date has already been adjourned. The 'temporary' order could potentially remain in force for a very long time.
QLD Withdrawing Private Application for a DVO?
- Thread starter Mya_h
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If you are the applicant, and the order is still a temporary one, you are entitled to withdraw your application and ask the Magistrates Court that the temporary order be dismissed. This is done by contacting the Court registry that you filed your application at and asking them to withdraw it. You will normally then be asked to appear in court to explain your desire to withdraw the application to a Magistrate. You, of course, should not take this course if the order is necessary for your protection or the protection of a named person. SOURCE >>>> CLICK HERE
We don't know WHAT the reason for the private application was. Frankly given how broad the grounds are it could have been anything from a smack over the head with a 4x2 to not paying a bill...
It could also be that the applicant has sincere regrets or that the application was in her own mind vexatious.... We don't know. It will be up to the mag hearing her request to withdraw that will have to make that call...
Yeah, except if she wants to normalise relations (seems like a given if you don't assume that she's under some kind of duress), him even speaking to her is a likely a breach and criminal offence. We also don't know the conditions of the current interim order but lets assume it states he must not contact her by any means or go within a certain distance of her property. Let's say she takes your advice to leave the order in place but at some point down the track invites him over for a chat to sort things out, or even to move back in with her. It's not simply a matter of 'behave yourself' because if they have an disagreement that gets a little heated (something I suspect that nobody on planet earth can say they've never had with a partner at some point in time), even if she's the aggressive one and he is 'behaving himself' by any reasonable definition, he's still the one that's going to be arrested if police get involved, not her.
I think you're fundamentally missing the point here. You seem to be talking about how he shouldn't commit family violence. Yes, I think we can all agree about that. But that's certainly not the only thing that can get him arrested as things stand. As I said, even COMMUNICATING with her is a breach. You're talking as though contacting her or going to her house by invitation is something "he should not do anyway" as though it's inherently a crime. No, it's not, it's only a crime when you have a DVO order on you! It's something any of us can do to any other person without any risk of being arrested.
The main problem I have with your advice is that you have no idea of her motivations and reasons for wanting it withdrawn. You're guessing as much as anyone else and sure, you might have professional experience with such orders, but it seems silly to assume anything about her reasons until you hear it from the horse's mouth.
Ah yes, the old "I didn't her that hard" defence.
A genuine change of mind is always a possibility.
But, as I said above, such applicants are the atypical minority.
Aligned to what I said above about police being pretty good at sussing out non-genuine allegations of breach,
Magistrates are also well versed in assessing the bona fides of a withdrawal applicaton,
and in assessing the objective risk, no matter what the applicant might believe.
It's not at all uncommon for an application to withdraw to be refused.
I hate to say it but the probability is that Tim W is absolutely right. I'm no expert, but I'm agreeing from my own personal experience and roughly 40 years of hearing other women's stories.
... Clearly, that's not even ball park to the point I was making... ridiculous response really
.... Yes it is, & may well be the case here....
Tim.... As much as you like to assume that the named person here must be guilty of something, right, after all she has taken out an order.... Do you ever stop to consider for one minute that there are many cases, particularly private applications, where the named person has actually done nothing?... What rights & protections does the legal system REALLY offer these people?... A court hearing? To prove that they did NOT do something they are alleged to have done? ..... How do you prove that.... serious question to you?
Should a magistrate just err on the side of caution then, after all, there is obviously animosity present right & the protected person does CLAIM to be fearful...
And unfortunately for the named person (usually a bloke) if the police were called (warranted or not) & the kids were present, well the kids can now be included on that order as protected persons as well because they witnessed police intervening & are deemed to have been exposed to family violence... He can only communicate with mum via a lawyer, which he may not be able to afford.... Where are his rights, & the kids rights under family law? ..... What REAL, meaningful support is there out there for such a person?
A bit of reading that may give some a different perspective on the vexed issue of FVO's, what should be included in the definition of FV, & magistrates being told to always err on the side of caution....
Under these proposed laws respondents can be forced out of their homes, lose access to their children and other rights, without the requirement for evidence to be provided. In its final report on the subject, the Law Reform Commission of Western Australia explicitly rejected such moves, noting they were likely to exacerbate the existing problem of overuse and abuse of violence restraining orders, which are known to be used for tactical purposes in family law litigation.
Source >>>>> CLICK HERE
Under these proposed laws respondents can be forced out of their homes, lose access to their children and other rights, without the requirement for evidence to be provided. In its final report on the subject, the Law Reform Commission of Western Australia explicitly rejected such moves, noting they were likely to exacerbate the existing problem of overuse and abuse of violence restraining orders, which are known to be used for tactical purposes in family law litigation.
Source >>>>> CLICK HERE
I can tell you from experience in a very similar situation that practically speaking, there is no real, meaningful support for such a perswon. The whole system is completely an utterly genderised so that women get pretty much all the support they want, and men are treated as perpetrators by definition. When my journey began, I naively thought that "If you haven't done anything wrong, the truth will set you free". I didn't have enough money to fight the DVO in the magistrate's court AND pursue a family law case, so I essentially relied on duty lawyers to advise me how to handle the DVO. I thought I had nothing to lose in trying to oppose it.
Over time, I realised that whether you're guilty or you're innocent, you're bent over just the same and treated as though you are guilty in ways that are arguably worse than in criminal law where you at least have the presumption of innocence and the prosecution needs to PROVE you committed the crime. Not so with a DVO. A plausible claim and no evidence is all the applicant needs.
It took 13 months to get to a contested hearing, longer than it would have taken if I had consented without admission in the first place. That's 13 months without justice, without being able to tell your side of the story. 13 months being forced out of your home and deprived of almost all your belongings, and sometimes deprived of contact with your children (if I didn't have the sense to pursue access to my children through family law, that may well have been the case).
On the day of my contested hearing, after having been told by my family law lawyer that there was nothing to gain and everything to lose by 'winning' my IVO case, I decided to consent without admission. The police officer that was prosecuting my ex's case, only once I had consented, admitted that my ex's case was very weak, that she had admitted to hitting me and the worst she had accused me of was pushing her away, and that normally that isn't what IVOs are supposed to be for. They warned me to be careful around her because she was clearly gunning for me.
So sure, Tim and Allison may have their many years of personal experience, but I suggest there may be some confirmation bias going on. Every case should be heard on its merits without prejudice. There is a huge amount of room for abuse in the system. I don't have the statistics on how often such cases are vexatious (and I suspect nobody does, given how most end with consent without admission and no testing of the facts) but I know how beneficial they are to people in parenting matters because they effectively make you primary carer by default, and once you're primary carer, that's likely the way it will remain for the foreseeable future. Apparently around half of all cases being heard in the Family Court involve a DVO these days.
I don't think it's going too far to say that expanded definitions for family violence & even further relaxation of probative evidence in granting interim & final FVO's have reached a point where they are creating an environment conducive to the very thing they are supposed to address....
Add to that the fact that even when an applicant is found to have mislead or even blatantly lied in supporting & subsequent affidavits, (often resulting in no conatct with thier own kids for lengthy periods) there is no punitive measures dished out, the respondent may have spent thousands on legal fees for which there is no avenue to seek costs, & you have a powder keg of emotion .
It's a great pity that our pollies are motivated more by chasing a populist vote than having a serious & honest discussion on FV, taking into account both sides of the equation & putting in some amount of punitive measures for those who deliberately lie on sworn affidavit's, & the rampant abuse of process by attempting to influence an outcome in one court (family court) by applying for spurious FV orders in local courts
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