December 11, 2020 at 5:21 am #283Chad DawsonParticipant
My matter relates to a cross application protection order. In my case the police had already issued a DV against my wife based upon video evidence of her attacking me, with the worst part being how she went to a gun-safe in search of my licensed pistol that was safely locked up there. I am a member of a pistol shooting club and that’s why I have a gun.
In the Police statement they detail concern they have for her mental condition and actions. However, several days later she lodged a vexatious DV cross order against me with a long list of false claims attached to it. The order came with an ouster order and I was given 25 minutes by police to leave my house.
I run my business from my house and all of my equipment is stored within the house and I have been unable to retrieve any of it. So effectively my business has pretty much ended whilst this ordeal has unfolded.
Through my lawyer we have been trying to get access for me to the house. We went to court for the second time yesterday and because my wife still had not organized any legal representation, they again allowed her to have yet another 4 week adjournment. She also made a new DV claim against me in that I had a spare set of car keys belonging to my car which she is currently using.
We tried to get the court to allow me access to the property with Police attendance to collect critical items, but because my wife said no to this the court is now denying me access and it is killing my business.
The upshot is that effectively the courts have put my children in full custody of my unstable wife who has had a history of violence to myself and the children of which I and the Police have evidence of and my business, which had been doing rather well before all this, has all but ceased operation.
I am confident I will ultimately be successful when the matter goes to hearing, but in the meantime I will have lost around $160,000 in business income and it will cost me around $30,000 in legal costs.
Assuming I have success from the hearing will I be able to claim my costs against both the court system for being negligent in the matter and my wife for the false claims. My lawyer says that the magistrate would not have known of the Police order that was in place.
But surely if someone comes in with a list of DV claims the courts would put their name into the system and see that there was already a Police issued DV claim and they would then read the Police statements which I would have thought would raise alarm bells with the magistrate?
My lawyer says though that the magistrate would have spent a total of about one minute looking at the matter before accepting and authorizing it. That to me is clear negligence on their behalf.
December 11, 2020 at 5:26 am #284Jake PetersonParticipant
How’s their form?
They basically gave her protection order application priority over yours even though both were temporary, the police had evidence of her violence, and her protection order application came second?
Sadly I can’t say I am surprised.
Hop it all works out for you Chad.
December 14, 2020 at 7:54 am #285Felix SpencherKeymaster
You could appeal the magistrate’s decision. That is one way the magistrate might come to understand that his decision was wrong, if the appeal is successful. But then again you have to weigh up the costs.
You should now be asking for both applications to be heard on the same day, then the magistrate has to take into consideration all the evidence from both sides. I am presuming that your application is a temporary one until it can be fully heard in the court.
Besides that, and as far as the magistrate not knowing about your protection order it was the job of your solicitor/barrister to fully acquaint the magistrate with the circumstances of the case. They should have advised the magistrate that the mother’s application was in response to an order issued for your protection. They should also have asked for an order to allow you to return to the house even if the police have to accompany you so you can collect your personal and work items. These orders are rarely refused if explained properly.
In addition to that there is usually a part within the forms that one fills in when you apply for a protection order application that provides for any current/previous orders that are in place. If your ex-partner filled her form in correctly she should have alerted to police/magistrate to your already existing protection order application.
As far as the children’s safety goes you should by now consider having an Initiating Application and affidavit into the Federal Circuit Court seeking sole residency of the children, complete with a “Notice of Risk of Child Abuse” and an accompanying letter to the Registrar explaining the need for an urgent hearing, which would hopefully be granted within a fortnight or so.
December 18, 2020 at 6:20 am #286Chad DawsonParticipant
Thanks for your response.
I will talk to my lawyer about appealing the decision.
What do you think about me being able to claim costs against the court system for being negligent in the matter with respect to not considering my protection order application when they granted my wife’s protection order application, and her false claims?
December 22, 2020 at 8:15 am #287Felix SpencherKeymaster
I think that;
1) There is very little chance that you will be able to directly hold the court accountable for anything in relation to your matter.
2) Your time, money, and effort may be better spent on ensuring your lawyer is well prepared for any upcoming hearings, making sure that you properly defend against her protection order application, and making sure that you properly prosecute your protection order application against her.
- You must be logged in to reply to this topic.